Opinion of ti-ie court by
JUDGE PATNTER.
— Reversing.
On December 12, 1891, the appellant, Williamson, and Col. John Dils entered into a contract by which the appellee sold to appellant an undivided one-third interest in what is known as the “Williamson-Dils Survey,” in Pike county, Ky., supposed to contain within its exterior boundaries some thirty-odd thousand acres. So much of the contract as is necessary for the consideration of this case reads as follows; “It being the one-third interest in the Williamson-Dils and Joe Hall tract of land, estimated to contain 18,000 acres, more or less, which land lies on the waters [968]*968of Knox and Peter creeks and Tug river, in Pike county, Ky. This land is,to be surveyed by party of the second part, and at his expense, and when the amount of said land is ascertained by survey, deducting the proper exclusions, then the party of the second part (Williamson) is to pay party of the first .part two ($2) dollars per acre for party of the first part’s one-third interest in said lands. Said survey shall be completed by the first day of April, 1892, at which time the purchase money shall be paid by party of the second part, and deed of quitclaim, free of dower, shall be made by party of the first part; but in the event that said survey is not at that date completed, but is well under way, and the party of the second part makes to the party of the first part a good, substantial payment on said purchase money, then the party of the second part shall have a.further reasonable time to complete said survey, at which time the balance of the purchase money shall be paid and deed made as above stated.” It will be observed that the parties estimated that Dils had a one-third interest in 18,000 acres of land, more or less. It was a sale by the acre, and the contract price was $2 per acre. The parties understood that all “proper exclusions” should be deducted. It was contemplated that, in order to ascertain the number of acres in which Dils had an interest, a survey was necessary, which was to be made at the expense of the appellant. It was to be completed by April 1, 1892, but, if not done, then, upon a good, substantial payment on the purchase money, further reasonable time to complete the contract was to be given the appellant. After the quantity of land was ascertained for which Williamson was to pay, Dils was to make him a quitclaim deed. Before and after April 1, 1892, Williamson had two or three corps of surveyors in the field, with a view of complying with his contract, but being unable [969]*969to complete it in March, 1892, he gave Dils notice that it could not be done, and made what he regarded as a substantial payment on the purchase money. The survey was never completed. Dils instituted this suit for specific performance of the contract, and prayed that a survey might be made at the expense of the appellant, to ascertain the number of acres for which he agreed to pay. Among other things, it was averred in the answer that at the date of the •contract it was not known by. either Williamson or Dils to what extent the lands embraced in the Dils-Williamson patent had been entered, surveyed, and patented prior to the 24th day of June, 1872, the date of the Williamson-Dils patent; that no survey of the land excepted from the grant had ever been made before or after that patent had been issued, and for this reason the provision was inserted in Ihe contract for the ascertainment of the number of acres for which Williamson should pay; and that the sale and purchase would depend upon such survey. It is also averred in the answer that appellant undertook by means ®f his surveying parties to prosecute the work with diligence, to ascertain the number of acres for which he should pay; that, without fault or procurement upon his part, persons residing within the exterior lines of the patent, in actual possession, and claiming a title thereto adversely to the Williainson-Dils title, were hostile and threatening, and by threats and hostile demonstrations by force and with arms alarmed, intimidated, and drove the surveying parties from the land; that that condition prevailed until the answer was filed in this action; and that, by reason of such threats and demonstrations by the residents in possession, it was impossible to secure a survey of the land, to ascertain the acreage in which Dils had an interest, and for which appellant was to pay under the terms of the contract. It is [970]*970further averred in the answer that more than half of the land was covered by prior surveys, and that about 7,000 acres of it were held under junior patents, under which the patentees had taken possession, and were then claiming the land. There were other averments in the answer, which are not necessary to be stated here.
The testimony offered by the appellant conduces to prove-that he undertook, in good faith, to have the survey made; that he prosecuted it with reasonable diligence; that he was engaged for a period of about six months in his efforts to make a survey of the land as contemplated by the contract; that the parties living within the boundaries were hostile to his claim, and by threats and intimidation prevented the surveyors from completing the work; and that these threats and demonstrations of force, compelled his surveying parties to quit the work, and for that reason did not complete it. Under such, circumstances, should the court decree a specific performance of the contract? It is a rule in equity that specific executions of contracts is not a matter of absolute right in either party, but upon the reasonable discretion of the court, and, unless it is equitable to do so, courts will not adjudge it. Cocanougher v. Green, 93 Ky., 519, 14 R., 507, 20 S. W., 542; Woollums v. Horsley, 93 Ky., 582, 14 R., 642; 20 S. W., 781. It is evident that the parties to this cony tract did not contemplate that such an obstacle would confront appellant in making the survey as did when he aty tempted to make it. Had the parties known that it would probably result in loss of life or bloodshed to ascertain the-number of acres which the appellant purchased from Dils, it is certain that they would never have entered into the contract; hence we say that neither of the parties had in contemplation such a condition of affairs as arose. The appellant was advised by his friends not to go upon the land, as he [971]*971would be in great danger of losing his life if he did so. He was not required to make such a sacrifice to carry ou't t'hte undertaking which he had assumed. Neither could he be held responsible because his undertaking was rendered impossible by reason of a threatened danger to those to whom he was compelled to look for the execution of the work. But the plaintiff evidently realized the situation, because in his petition he asked that the land be surveyed at the expense of the appellant, but he seems never to have moved the court to comply with the prayer of his petition by making an order of survey in the ease. The appellant did not do it, because his surveying parties had spent almost six months in the field, and had failed to accomplish it. It is suggested that the court could have made an order of survey, and called upon the officers of the law to protect the surveying parties. Neither side seemed to be willing to venture such an effort, as no motion was made for an order of survey. When the appellant did not accomplish it in the effort which he made, we are of the opinion that he did all which good faith required him to do to comply with the provisions of the contract, which obligated him to make a survey of the land at his expense.
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Opinion of ti-ie court by
JUDGE PATNTER.
— Reversing.
On December 12, 1891, the appellant, Williamson, and Col. John Dils entered into a contract by which the appellee sold to appellant an undivided one-third interest in what is known as the “Williamson-Dils Survey,” in Pike county, Ky., supposed to contain within its exterior boundaries some thirty-odd thousand acres. So much of the contract as is necessary for the consideration of this case reads as follows; “It being the one-third interest in the Williamson-Dils and Joe Hall tract of land, estimated to contain 18,000 acres, more or less, which land lies on the waters [968]*968of Knox and Peter creeks and Tug river, in Pike county, Ky. This land is,to be surveyed by party of the second part, and at his expense, and when the amount of said land is ascertained by survey, deducting the proper exclusions, then the party of the second part (Williamson) is to pay party of the first .part two ($2) dollars per acre for party of the first part’s one-third interest in said lands. Said survey shall be completed by the first day of April, 1892, at which time the purchase money shall be paid by party of the second part, and deed of quitclaim, free of dower, shall be made by party of the first part; but in the event that said survey is not at that date completed, but is well under way, and the party of the second part makes to the party of the first part a good, substantial payment on said purchase money, then the party of the second part shall have a.further reasonable time to complete said survey, at which time the balance of the purchase money shall be paid and deed made as above stated.” It will be observed that the parties estimated that Dils had a one-third interest in 18,000 acres of land, more or less. It was a sale by the acre, and the contract price was $2 per acre. The parties understood that all “proper exclusions” should be deducted. It was contemplated that, in order to ascertain the number of acres in which Dils had an interest, a survey was necessary, which was to be made at the expense of the appellant. It was to be completed by April 1, 1892, but, if not done, then, upon a good, substantial payment on the purchase money, further reasonable time to complete the contract was to be given the appellant. After the quantity of land was ascertained for which Williamson was to pay, Dils was to make him a quitclaim deed. Before and after April 1, 1892, Williamson had two or three corps of surveyors in the field, with a view of complying with his contract, but being unable [969]*969to complete it in March, 1892, he gave Dils notice that it could not be done, and made what he regarded as a substantial payment on the purchase money. The survey was never completed. Dils instituted this suit for specific performance of the contract, and prayed that a survey might be made at the expense of the appellant, to ascertain the number of acres for which he agreed to pay. Among other things, it was averred in the answer that at the date of the •contract it was not known by. either Williamson or Dils to what extent the lands embraced in the Dils-Williamson patent had been entered, surveyed, and patented prior to the 24th day of June, 1872, the date of the Williamson-Dils patent; that no survey of the land excepted from the grant had ever been made before or after that patent had been issued, and for this reason the provision was inserted in Ihe contract for the ascertainment of the number of acres for which Williamson should pay; and that the sale and purchase would depend upon such survey. It is also averred in the answer that appellant undertook by means ®f his surveying parties to prosecute the work with diligence, to ascertain the number of acres for which he should pay; that, without fault or procurement upon his part, persons residing within the exterior lines of the patent, in actual possession, and claiming a title thereto adversely to the Williainson-Dils title, were hostile and threatening, and by threats and hostile demonstrations by force and with arms alarmed, intimidated, and drove the surveying parties from the land; that that condition prevailed until the answer was filed in this action; and that, by reason of such threats and demonstrations by the residents in possession, it was impossible to secure a survey of the land, to ascertain the acreage in which Dils had an interest, and for which appellant was to pay under the terms of the contract. It is [970]*970further averred in the answer that more than half of the land was covered by prior surveys, and that about 7,000 acres of it were held under junior patents, under which the patentees had taken possession, and were then claiming the land. There were other averments in the answer, which are not necessary to be stated here.
The testimony offered by the appellant conduces to prove-that he undertook, in good faith, to have the survey made; that he prosecuted it with reasonable diligence; that he was engaged for a period of about six months in his efforts to make a survey of the land as contemplated by the contract; that the parties living within the boundaries were hostile to his claim, and by threats and intimidation prevented the surveyors from completing the work; and that these threats and demonstrations of force, compelled his surveying parties to quit the work, and for that reason did not complete it. Under such, circumstances, should the court decree a specific performance of the contract? It is a rule in equity that specific executions of contracts is not a matter of absolute right in either party, but upon the reasonable discretion of the court, and, unless it is equitable to do so, courts will not adjudge it. Cocanougher v. Green, 93 Ky., 519, 14 R., 507, 20 S. W., 542; Woollums v. Horsley, 93 Ky., 582, 14 R., 642; 20 S. W., 781. It is evident that the parties to this cony tract did not contemplate that such an obstacle would confront appellant in making the survey as did when he aty tempted to make it. Had the parties known that it would probably result in loss of life or bloodshed to ascertain the-number of acres which the appellant purchased from Dils, it is certain that they would never have entered into the contract; hence we say that neither of the parties had in contemplation such a condition of affairs as arose. The appellant was advised by his friends not to go upon the land, as he [971]*971would be in great danger of losing his life if he did so. He was not required to make such a sacrifice to carry ou't t'hte undertaking which he had assumed. Neither could he be held responsible because his undertaking was rendered impossible by reason of a threatened danger to those to whom he was compelled to look for the execution of the work. But the plaintiff evidently realized the situation, because in his petition he asked that the land be surveyed at the expense of the appellant, but he seems never to have moved the court to comply with the prayer of his petition by making an order of survey in the ease. The appellant did not do it, because his surveying parties had spent almost six months in the field, and had failed to accomplish it. It is suggested that the court could have made an order of survey, and called upon the officers of the law to protect the surveying parties. Neither side seemed to be willing to venture such an effort, as no motion was made for an order of survey. When the appellant did not accomplish it in the effort which he made, we are of the opinion that he did all which good faith required him to do to comply with the provisions of the contract, which obligated him to make a survey of the land at his expense. Specific performance will not be decreed if the contract and situation of the parties be such that the remedy of specific performance will be harsh or oppressive. Pomeroy, Equity Jurisprudence, section 1405. In 'explanation of this doctrine in note 2 to that section it is said: ‘‘This rule generally operates in favor of defendant, but may be invoked by a plaintiff when defendant demands the remedy by counterclaim or cross-complaint. The oppression or hardship may result from unconscionable provisions of the contract itseif, or it may result from the situation of the parties, unconnected with th'e terms of the contract, or with the circumstances of its negotiation and execution; [972]*972that is, from external facts or events or circumstances which control or affect the situation of the defendant.” The resistance made by occupying claimants to a survey of the land is a circumstance which so affects the appellant that he could not perform that part of the contract which required him to have the land surveyed. If he could not do so in the usual and peaceable way, the court should not decree that he should have done so.
It is urged by counsel for appellee that, as Dils was only required to make a quitclaim deed to Williamson for his interest in the land, therefore he was compelled to accept whatever title Dils had. The parties agreed that the actual number of acres in which Dils had an interest should be ascertained before Williamson was required to pay for the land or accept any kind of a deed. As we have said, the sale was by the acre, and the appellant encountered the same difficulty in the execution of the survey as he would have encountered had the contract required Dils to make a deed with covenants of general warranty. From our view of the case, the character of the deed to be made has nothing to do with it. While Williamson was to accept a quitclaim deed, Dils was never in a condition to tender it to him until the number of acres for which he was required to pay had been ascertained. It would be harsh and oppressive to decree specific performance under the circumstances of this ease. The court below decreed specific' performance, but, in order to do so, was compelled to practically guess at the quantity of land for which the appellant should pay. The contract of the parties did not contemplate that a court should be required to do that, in order to ascertain the number of acres for which the appellant should pay the vendor. We are of the opinion that the contract should be [973]*973rescinded, and tlie money which Williamson 1ms paid on- the purchase money should be restored to him, but not to draw interest until the mandate, is filed below.
Judgment is reversed for proceedings consistent- with this opinion.
Petition for rehearing by appellee overruled.