(dissenting).
It is not the function of courts to make contracts for people. On this premise, I base my dissent to the decree of this Court which orders Mrs. English to execute a conveyance for a consideration she never agreed to accept. Mr. Jones in this suit is not tendering the full purchase price and waiving any and all defects in the title. He is insisting upon an abatement in price, but the contract which Mrs. English signed is not divisible. She did not agree to convey an undivided five-eighths of the property or any other interest therein for $5,937.50, i.e., five-eighths of $9,500. The parties made no agreement covering the possible circumstance that at the time set for the closing of the deal, Mrs. English would not be able to convey the entire title. We should not contract for them. If it be urged that such position would defeat any demand for a so-called partial specific performance, let me point out that in cases of indivisible contracts there should be present either an express contractual provision supporting the order of partial specific performance or strong elements of estoppel. In this case there is neither.
As Mr. Jones knew at the time the contract was executed that Mrs. English did not own the entire title to the property, no principle of estoppel operates to preclude her from effectively protesting a reduction in the purchase price agreed upon. “The general doctrine of the right of the vendee to specific performance with an abatement from the purchase price is qualified by an important limitation — that it can ,not be invoked by a purchaser who, at the time of the making of the contract, had notice of the fact that the vendor had a limited interest in the land, or that his title was defective, or the quality deficient.” 49 Am.Jur. 125, Specific Performance, § 106.
A reading of the statement of facts and the findings of the jury convinces me that this is no proper case for the issuance of the mandatory writ, placing Mr. Jones in the position of a cuckoo in the English family nest, so to speak, by making him a tenant in common with the English children. However, I wish to place my dissent upon a broader ground than the particular facts of this case, and accordingly will use impersonal letters and the never ending litigation over “Blackacre” for the purposes of illustration. The simple factual situation disclosed by the present record is as follows:
A, B and C own Blackacre. A agrees to sell all of Blackacre to X for $1,500. B and C are not mentioned in the contract. However, both A and X know of the interest of B and C. X cannot force A to convey to him an undivided one-third interest in Blackacre upon the payment of $500, for the reason that the parties knew of A’s limited interest at the time the contract was made, yet, nevertheless, did not agree that A should sell an undivided one-third interest in Blackacre for $500, and the courts will not make such contract for them.
The proposition stated is not only supported by the quotation from American Jurisprudence, but is in accordance with the general American rule on the point. 81 C.J.S., Specific Performance, § 21(2), p. 448, 5 Williston on 'Contracts 4012, § 1436. This rule is fairly simple of statement and of application and I would follow it.
But it is said that the Texas cases,-namely, Ward v. Walker, Tex.Civ.App., 159 S.W. 320, Hays v. Marble, Tex.Civ.App., 213 S.W.2d 329, and Dittoe v. Jones, *692Tex.Civ.App., 220 S.W.2d 315, 317, are contrary to the prevailing rule. With this, I do not agree. The analogy between those cases and the present one is more seeming than real. Equity abounds in pretenses, fictions, inventions, devices and trusts which are not true trusts, and quasi-contracts. It is a fertile field wherein unsound doctrines sometimes take root and render the operation of the law unnecessarily harsh and oppressive. “With the excesses of chancery are sown the seeds of tyranny in the English law.” It is sometimes tempting and even upon occasion desirable to regard that which is similar as being identical, but it is a course fraught with peril. We first say: “In this unusual case, mutuality is not essential to specific performance,” then, “Mutuality is not necessary to specific performance,” and, finally, “Mutuality is immaterial to specific performance.” Particularly in the field of quasi-contracts, where we regard that as a contract which appears to be a contract, conceptual confusion often abides, and the danger of the unwholesome enlargement of the mandatory writ under the guise of enforcing a quasi-contract is real indeed. While equity often proceeds with solemn platitudes and maxims and protestations of its own righteousness, it should be remembered that the gaol has ever been an essential part of the chancellor’s equipment and that equitable sanctions are ambng the most harsh and drastic known to the law. While some situations demand strong remedies, the use of the mandatory injunction should not be resorted to upon some seeming similarity to decided cases which upon principle may be clearly distinguished. An equitable remedy should not be tendered in lieu of an action at law, simply because a jury might look with disfavor upon a substantial award of damages. Article 1, § 15, Constitution of Texas, Vernon’s Ann. St.
As to the Texas .decisions above cited, it seems necessary to disregard the express wording contained therein in order to reach the conclusion that such authorities support the rendition of the decree in this case. In those cases, the contracts involved showed upon their face that a number of parties were co-owners of property. It was' not necessary, as is the case here, to go outside the contract and dredge up a supposed equity to support the writ. The operating principle involved, as -stated in Dittoe v. Jones, is “that where a number of parties execute a contract to sell real estate and it develops that one or more of them do not or cannot perform, those who are able to do so are bound to convey their interest and specific performance will be decreed in favor of the purchaser because the purchase price shall be apportioned among them. * * * The rule above announced is derived from the fact that one of the owners of real estate may sell his interest without the permission of the other owners, and that when he signs a contract of sale he is not affected if some of the other owners do not sell in view of the fact he is to receive his full share of the sale price.”
The case therefore supports this proposition: If a contract shows on its face that A, B and C are owners of Blackacre and that they agree to sell same to X for $1,500, but C fails to sign the agreement, X may nevertheless compel A and B to perform upon the payment of $1,000, for the reason that the contract may be considered as severable, i.e., A agreed to sell X an undivided one-third interest for $500 and B agreed to do likewise. The decree is supported by a legitimate and proper construction of the contract.
When we consider estoppels (quasi-contracts), the element of knowledge on the part of the contracting parties as to the condition of the title and quantity of the interest of the vendor is a controlling factor. If the vendee does not have knowledge of the vendor’s limited title, he is unable to protect his interests by agreement and we have a true case of quasi-contract proceeding upon an estoppel basis. This is well illustrated by the dictum of Lord Eldon in Mortlock v. Buller, 10 Ves.Jr. 292, 315, 32 Eng.Reprint 857, 866:
“* * * I also agree, if a man, having partial interests -in an estate, chooses to enter into a contract, representing it, and agreeing to sell it, as *693’his own, it is not competent to him afterwards to scvy, though he has valuable interests, he has not the entirety; ■ and therefore the purchaser shall not have the benefit of his contract.”
This is a clear statement of estoppel and •proceeds upon the theory that the vendor represented something to the vendee which was untrue and which the vendee relied upon to his hurt. This principle should be applied only in cases where the vendee occupies a superior equitable position, such as where he has been imposed upon by a representation as to the nature .and extent of the vendor’s title. I would not extend the estoppel principle beyond the statement of Lord Eldon, nor apply it in cases where both parties have equal .knowledge. Courts have reaped a harvest of their own making by the over-extension •of the equity arm. There are decisions in the books representing a minority view, in my opinion, together with remarks by annotators and commentators, which proceed confidently upon the assumption that what’s .good for the parties is what the chancellor says is good for them, rather than what they contracted for. To say in effect that because parties often contract to sell property they do not own, courts should therefore read into the contract provisions which the parties omitted, is a prime example of the non sequitur. If a person, being aware ■of the fact, contracts with a party owning less than the entire title and desires to purchase less than the whole at an abated price in the event the seller is unable to convey the entire title, why shouldn’t he be required to say so in the contract?
Let us return to the specific contract here involved and see what it does contain and what it does not contain. Two parties only .are named therein, and the agreement in part reads as follows:
“This memorandum of agreement made and entered into by and between Mrs. Rudolph English, hereinafter called Seller, of the County of Nueces, State of Texas, and Dudley Jones, hereinafter called Purchaser, of the County of Nueces County, State of Texas, Witnesseth:
“1. The Seller, for the consideration and upon the terms hereinafter set out, hereby agrees to sell and convey unto Purchaser, and Purchaser agrees to buy, the following described property situated in Nueces County, Texas, to-wit: (Here follows description of the property.)
“2. The purchase price is $9500.00 Dollars, which the Purchaser agrees to pay Seller * * * in cash * * * when deed to said land is executed and delivered to Purchaser, * *
The contract contains no mention of the children of Mrs. English. Despite the fact, as found by the jury, both parties knew at the time of the execution of the contract, that Mrs. English did not own the entire title to the property, the parties did not contract that Jones should receive whatever interest Mrs. English might hold at the time set for closing of the deal and that the purchase price should be proportionately abated. If the parties themselves, having full knowledge of the condition of the title, did not see fit so to contract, why should we, as an appellate court, so contract for them?
Mrs. English, for obvious reasons, could never have secured a decree compelling Jones to pay to her five-eighths of $9,500.00 in exchange for her undivided interest in the real property involved. Jones made no agreement to that effect. On the principle that equity be equality, I would likewise refuse Mr. Jones’ request that we make and enforce such an agreement.
In my opinion, the trial court’s judgment should be affirmed and I accordingly dissent from the decision of the Court.