[217 U.S. 323, 324] Messrs. James E. Padgett and Henry E. Davis for appellant.
[217 U.S. 323, 326] Messrs. Charles H. Merillat, George R. Gaither, and Charles J. Kappler for appellee.
Mr. Justice Holmes delivered the opinion of the court:
This is a bill in equity, brought by the executor of one Ball for the specific performance of a contract made by the appellant to purchase certain land. The plaintiff had a decree in the court of appeals for the District of Columbia, and the defendant appealed. 31 App. D. D. 29. defendant appealed. 31 App. D. C. 29. as follows: 'This agreement, made by and between L. A. Griffith, duly authorized agent and attorney, under a certain power of at- [217 U.S. 323, 327] torney from Alfred W. Ball, both of Prince George's county, Maryland, parties of the first part, and Wm. W. Stewart of Washington, District of Columbia, of the second part. Witnesseth that the said W. W. Stewart has paid to the said L. A. Griffith, agent, the sum of five hundred dollars ($ 500) part purchase price of the total sum to be paid for a certain tract of land, owned by the said Alfred W. Ball,' in Maryland, as described, 'same being sold at the rate of $40 per acre.' 'And the said L. A. Griffith, as the agent and duly authorized attorney of said Alfred W. Ball, hereby grants, bargains, and sells, and agrees to convey by proper deed . . . duly executed by the said Ball to the said Stewart, the said 240 acres of land upon further payments and conditions hereinafter named, to wit: The balance of one half of the purchase price of the said 240 acres, more or less, at the rate of $40 per acre, is to be paid to the party of the first part on the 7th day of November, 1903, and the remaining one half of the total purchase price is to be divided into five equal payments, secured by five promissory mortgage notes, secured by purchase-money mortgage upon the said property, to be given by the said Stewart and wife,' with immaterial details. A burial lot of one acre is reserved, 'conditioned, however, that if the said Ball should desire to abandon the said burial tract. . . . he shall have paid to him therefor by the said party of the second part the sum of ($40) forty dollars,' etc. 'The said land is to be surveyed and a plat made thereof, and the total purchase price is to be at the rate of $40 per acre, as determined by the said survey; the cost of the said survey is to be borne equally by the said parties of the first part and the second parts; the said L. A. Griffith and W. W. Stewart each to pay one half of the total survey costs. Proper deed or deeds of conveyance and abstracts of title of the said land, based upon title search therefor, is to be made and by J. K. Roberts . . . showing clear and unencumbered fee-simple title, in the said land above mentioned and described, in the said Alfred W. Ball, and one half of the total costs for [217 U.S. 323, 328] same, not exceeding $50, is to be borne equally by the parties hereto. In case the remainder of the first half of the purchase price be not paid on November 7, 1903, then the said $500 so paid to the said Griffith is to be forfeited and the contract of sale and conveyance veyance to be null and void, and of no effect in law, otherwise to be and remain in full force . . . . The possessory right to all of the said premises on the property mentioned herein is to remain in the said Ball, until the one half payment of the total purchase price herein provided for on November 7th, 1903, has been fully paid and satisfied, to the said L. A. Griffith, agent. Witness our hands and seals this 5th day of June, 1903. L. A. Griffith. Wm. W. Stewart.' With seals.
The first defense is based on this document itself. It is said that the defendant made no covenant, and therefore was free to withdraw if he chose to sacrifice the $500 that he had paid. This contention should be disposed of before we proceed to the other questions in the case. The argument is that the condition of forfeiture just stated and the consequence that the contract is to be void and of no effect in law disclose the only consequences of default on the purchaser's part, much as until well after Lord Coke's time the only consequence of breaking the condition of a bond was an obligation to pay the penalty. The obligor was held to have an election between performing the condition and payment. Bromage v. Genning, 1 Rolle Rep. 368; 1 Inst. 206b; Hulbert v. Hart (1682) 1 Vern. 133. Some circumstances were referred to in aid of this conclusion, but, as we think the meaning of the document plain, we shall not mention them, except in connection with other matters, further than to say that there is nothing that would change or affect our view.
It sems to have been held within half a century after Hulbert v. Hart, that, under some circumstances, at least, a bond would be construed to import a promise of the event constituting the condition. Hopson v. Trevor ( 1723) 1 Strange, 533, s. c. 2 P. Wms. 191; Anonymous (1728) Mosely, 37; [217 U.S. 323, 329] Roper v. Bartholomew, 12 Price, 797, 811, 822, 826, 832; Hooker v. Pynchon, 8 Gray, 550, 552. But in this case we are not confined to a mere implication of a promise from the penalty. The tenor of the 'agreement' throughout imports mutual undertakings. The $500 is paid as 'part purchase price of the total sum to be paid;' that is, that the purchaser agrees to pay. The land is described as 'being sold.' There are words of present conveyance, inoperative as such, but implying a concluded bargain, like the word 'sold' just quoted. So one half of the purchase price 'is to be' divided and the notes secured by mortgage 'to be given;' and in the case of the burial lot, Ball 'shall have paid to him' $40 if he elects to abandon it. Here is an absolute promise in terms which it would be unreasonable to make except on the footing of a similar promise as to the main parcel that the purchaser desired to get. We are satisfied that Stewart bound himself to take the land. See Wilcoxson v. Stitt, 65 Cal. 596, 52 Am. Rep. 310, 4 Pac. 629; Dana v. St. Paul Invest. Co. 42 Minn. 194, 44 N. W. 55. The condition plainly is for the benefit of the vendor, and hardly less plainly for his benefit alone, except so far as it may have fixed a time when Stewart might have called for performance if he had chosen to do so, which he did not. This being so, the word 'void' means voidable at the vendor's election, and the condition may be insisted upon or waived, at his choice. Knicker-bocker L. Ins. Co. v. Norton, 96 U.S. 234 , 24 L. ed. 689; Oakes v. Manufacturers' F. & M. Ins. Co. 135 Mass. 248, 249; Titus v. Glens Falls Ins. Co. 81 N. Y. 410, 419.
Ball died on November 5 or 6, 1903, just before the date fixed by the contract for the payments (November 7). He left a will appointing Griffith his executor, and containing provisions to which we shall refer later. Before probate, Griffith wrote to Stewart as follows, on November 10:
The stipulations in the contract were performed on the part of the vendor, and it now may be assumed that Stewart's obligation is outstanding, although repudiated by him, and that the only question is whether it can be enforced by Griffith in this action. To be sure, there was some attempt on Stewart's part, earlier, to say that he merely represented an oil company, and that the company alone as bound; but this properly was abandoned at the argument,-Stewart's name is the only one appearing in the instrument, and he signed and sealed it, so that no such escape is open. Glenn v. Allison, 58 Md. 527; M'Ardle v. Irish Iodine & Marine Salts Mfg. Co. 15 Ir. C. L. Rep. 146, 153.
Coming, then, to the question that remains, it is to be noticed as a preliminary that if Ball's executor could have maintained this suit in Maryland, where the land lies, he can maintain it here, where the defendant resides. D. C. Code, 329 [31 Stat. at L. 1242, chap. 854]. Some technical objections were raised before us as to the proof of the probate proceedings, but it sufficiently appears that Ball's will was proved and that the plaintiff qualified as executor under the same. [217 U.S. 323, 331] By the Maryland Code, an executor may prosecute any personal action whatever, whether at law or in equity, that the testator might have prosecuted, except an action for slander. Code of 1888, art. 93, 104. And by 81 of the same article, the executor of a person who shall have made sale of real estate, and has died before receiving the purchase money, or conveying the same, may convey said real estate to the purchaser, and his deed shall be good and valid in law, and shall convey all the right, title, claim, and interest of such deceased person in such real estate as effectually as the deed of the party so dying would have conveyed the same; provided, the executor of the person so dying shall satisfy the orphans' court granting him administration that the purchaser has paid the full amount of the purchase money. These seem sufficient to make out the plaintiff's case, if there were nothing more. The proviso in the Maryland statute obviously must create a condition subsequent only, as it is not to be supposed that a purchaser would pay unless he got what he paid for at the same time. In substance, the Code points out the executor as the proper person to enforce the contract, gives him a right of action to that end, and empowers him to make the deed. We do not perceive how a conveyance could be questioned, if made by an executor upon a cotemporaneous payment of the price, in pursuance of a binding contract of his testator, even without obtaining antecedent authority from the orphans' court. Therefore we do not perceive why the executor is not entitled to require specific performance if he is ready to deliver a deed at the moment of receiving the price. In this case the executor obtained an order from the orphans' court, purporting to authorize him to complete the sale, as if it had been an application for leave to sell under 276. This seems to us to have been superfluous, but it did no harm, and it does not narrow the plaintiff's right to recover, by being set out as one of the foundations of the bill.
Next, apart from statute, it would be going far in search of possible doubts to say that sufficient authority could not be [217 U.S. 323, 332] derived from the will. The language is, 'I direct, authorize, and empower' the executor 'to have full and complete power and authority over my entire estate, real, personal, and mixed;' and it directs and empowers him to sell the testator's real estate at public sale, after one month's notice, upon such terms as he thinks proper. We are not inclined to disagree with the court of appeals in its opinion that the words, taken with the whole will, imply a devise of the legal title to his executor, and an authority sufficient to warrant his carrying out the sale. It is urged that the probate of the will does not establish it conclusively as to real estate, and that the heirs might attack it hereafter; but it is answered that, by the contract, the land had become personalty as against them, and that therefore, so far as this land is concerned, the will is safe from collateral attack. Moreover, as it is clear that the estate has and is subject to a binding contract, it is hard to see how it matters to the heirs who does the formal acts of accomplishment, so long as he is accountable to the orphans' court.
No question was raised on either side as to the covenants of Stewart being enforceable only by Griffith personally, because the agreement was under seal, and Griffith alone was party to it. Berkeley v. Hardy, 5 Barn . & C. 355; Frontin v. Small, 2 Ld. Raym. 1418, 1419. It is enough to say that Stewart could not have profited by the suggestion, had it been made.
Mr. Justice Harlan concurs in the result.