majority"> Campbell, J.,

delivered the opinion of the court.

This is a clear case for specific performance with damages for unwarranted delay. The unmistakable interpretation of the contract of the parties is that delivery of actual possession of the land *303was stipulated for. This is the primary meaning of the term, and the natural suggestion from its use when nothing is shown to vary it, and any other meaning is excluded in the dealing between these parties. The fact that Mr. Pointer bounded the time when his agent might sell the land by the period in which he (Pointer) might lawfully cancel the lease to Cox, shows that he had in contemplation a sale that would give the purchaser possession free from the lease, and the failure of Thurman to mention the rent notes in his offer to buy, shows that the possession he had in view was an actual one.

The stipulation for good title had reference to the fee in the land, and not to the possession. If Pointer had cancelled the lease to Cox, and Thurman had refused to comply with his contract on the ground that his purpose in buying was to secure the benefit of the lease for the next t\yo years, and that the cancellation of the lease by Pointer had defeated his object and released him from his contract, his position would have been utterly indefensible. Upon the facts shown he would have been compelled to perform his contract, and, as such would have been his liability, he must have a corresponding right.

This is not the case of one contracting for what he knew the seller could not convey. As Pointer proposed to sell, Thurman had just ground to assume that he could deliver possession, as well as convey title j and in truth it was in the power of Pointer to cancel Cox’s lease, and he cannot avail of his failure to do what he could have done as an excuse for his refusal to execute the contract, which he could undoubtedly have enforced against the other party.

It is not inequitable to specifically enforce the contract, and justice demands that it shall be done, with damages for the unjustifiable delay to do what should have been promptly done.

jReversed and remanded, to be proceeded with in accordance with this opinion.

Citation profile

How this case has been treated — in progress