WARD v. FOLEY, 141 F. 364

POLLOCK, District Judge, after stating the facts as above, delivered the opinion of the court. From the above statement it is seen the sole point of controversy between the parties, submitted for decision, is the ajnount of money which is required by the terms of the contract to be paid by Foley as a condition precedent to the enforcement of the conveyance stipulated for in the contract. In other words, the question for decision is, what did the parties mean by the language used? To what did they intend to bind themselves by the terms employed in the contract made between them?

To ascertain the true intent of the parties to a contract is the fundamental rule in the construction of all agreements, Mauran v. Bullus, 16 Pet. 528, 10 L. Ed. 1056; Canal Company v. Hill, 15 Wall. 94, 21 L. Ed. 64. The language employed by the parties in the contract is not that of technical learning or ambiguous meaning. It is apparently unaffected by local usage or peculiar custom. None of the extraneous facts or attendant circumstances surrounding the making of the agreement, or the subsequent conduct of the parties with reference thereto, are before the court for consideration.

Therefore the decisión must rest alone upon the language of the contract itself, and by giving to that language such plain, reasonable, common-sense meaning as is thought men of ordinary intelligence would be expected to give to it in business transactions of a similar nature. In approaching such consideration of the contract it becomes material to first inquire what were the parties considering at the time; What forms the subject-matter of the engagement they were about to enter upon? Manifestly the transfer by Gaule to Foley, not of the land itself, but of the interest of Gaule in the land.

This the language of the contract makes clear beyond doubt: “I, Edward Gaule, hereby agree to sell and convey to James Foley all my interest in 320 acres of land.” The subject-matter of the contract, the thing to be dealt with by the parties, being thus clearly ascertained and stated, the contracting parties proceeded to an ascertainment and exact statement of the consideration or purchase price to be paid on the one hand, and received on the other, for the thing to be transferred to Foley, not as is often done in such cases, in bulk or by lump sum, but by fixing a basis upon which computation would be made when the exact acreage of the land should be determined, namely, “at the rate of fourteen dollars per acre” for each and every acre of the described land in which Gaule’s interest, the subject-matter of the contract, inhered; that is to say, in 318 acres as subsequently ascertained, and not 320 acres as specified in the contract.

Construing this contract, standing naked and alone, unaided by contemporaneous facts or the subsequent conduct of the parties with relation thereto, as we must do in this case, the construction given seems to our minds, not only that which is most reasonable and logical, but that alone which most clearly, naturally, and sensibly expresses the true intent and meaning of the parties, as gathered from the language they employed to perpetuate the evidence of their engagement.

Again, it is thought the construction placed upon the contract in question not only accords with the reason of the case, but will be found to be in harmony with the adjudicated cases bearing upon the subject under investigation. There is a clear distinction drawn by the authorities between a contract to convey land absolutely and a contract to convey an interest in land. In Van Rensselaer v. Kearney et al., 11 How. 297, 13 L. Ed. 703, Mr.

Justice Nelson, in delivering the opinion, makes reference to a deed purporting to convey all the right, title, and interest in real estate as follows: “A deed of this character purports to convey, and is understood to convey, nothing more than the interest or estate of which the grantor is seized or possessed at the time; and does not operate to pass or bind an interest not then in existence. The bargain between the parties proceeds upon this view; and the consideration is regulated in conformity with it.

If otherwise, and the vendee has contracted for a particular estate, or for an estate in fee, he must take the precaution to secure himself by the proper covenants of title.” The Supreme Court of Iowa, in Henderson v. Beatty, 99 N. W. 716, in commenting upon the subject, says: “The bargain of necessity had reference to the thing to be acquired, and the consideration was in all probability regulated accordingly.

When one undertakes to convey whatever right, title and interest he may have in land, this should not be enlarged upon, so as to require a transfer of the land itself.” In suits to compel the specific performance of contracts for the sale of land itself, it is the practice of courts of equity to inquire into the state of the title held by the party agreeing to convey, and, in case of the inability of such party to convey a good title to the entire estate, at the option of the purchaser, to refuse a decree of specific performance, or to compel an abatement of the purchase price to correspond with that interest which the seller may show himself able to convey.

Hooper v. Smart, 18 L. R. Eq. 683; Leach v. Forney, 31 Iowa, 371, 89 Am. Dec. 574. Courts of equity, however, when called upon to command performance of contracts clearly providing in express terms for the transfer of an interest in real property, as contradistinguished from a sale of the property itself (as in the case at bar) will refuse to investigate the state of the title held by the party agreeing to sell, or to compel an abatement of the purchase price to correspond with such interest. Phipps v. Child, 3 Drewry, 709.

In the light of the authorities it may be said, had Foley been in ignorance of the fact that Gaule owned but an undivided half interest in the land described, and had the contract provided for the sale of the land itself described therein, and the transfer of a good indefeasible estate thereto at the rate of $14 per acre, it is clear beyond doubt the court in such case, at the option of Foley, would have abated the purchase price one-half, and enforced performance of the contract as to the interest held by Gaule. But such are not the facts in the case at bar.

Here Foley knew the nature and exact extent of the interest held by Gaule in the property. For this reason it must be presumed it was not thought material to state in the contract the extent of the interest held. He contracted with reference to the purchase from Gaule of that interest alone, and agreed to pay therefor at the rate of $14 per acre. It follows .the decree must be modified to conform with the views herein expressed. It is so ordered.