This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Specific performance will not be decreed where such performance is in fact impossible and such decree cannot be enforced. Thus if the property contracted for was never owned by the vendor1 or is not in existence2 no decree for specific performance will be rendered. So if the vendor has sold the property to a bona fide purchaser against whom such decree cannot be enforced equity will not decree specific performance in a suit against the original vendor.3 This principle has been applied to contracts to issue stock to a subscriber, when the corporation has issued to bona fide purchasers all the stock at its disposal,4 or to contracts to sell stock when the vendor has sold to bona fide purchasers the stock contracted for.5 If the vendor has shares of the corporation enough to fill the contract specific performance will be decreed, even if he has sold the identical shares owned by him when he made the contract of sale.6 Conversely, if the vendee receives the proper number of shares in the same corporation he cannot complain because he does not receive the specific shares contracted for.7 If the promisor agrees to convey realty which he does not own at the time that the contract is entered into, but which he afterwards acquires, specific performance may be decreed.8
2 Borner v. Canaday. 79 Miss. 222; 55 L. R. A. 32S: 30 So. 638. (This relief was here refused, however, for another reason: namely, that its performance by the receiver who had been appointed to take charge of the property would be an undue tax upon the superintendence of the court.)
3 St. Regis Paper Co. v. Lumber Co., 173 N. Y. 149; 65 N. E. 0H7.
1Hildreth v. Thibodeau. 117 Fed. 146: Du Bois v. Bormann, - N. J. Eq. -; 55 Atl. 634.
2 Kennedy v. Hazelton, 128 U. S.
667; Smith v. Bank, 137 Cal. 363; 70 Pac. 184.
3 Summerlin v. Milling Co., 41 Fed. 249; Birmingham National Bank v. Boden, 97 Ala. 404; 11 So. 883.
4Summerlin v. Milling Co., 41 Fed. 249; Chaffee v. Ry., 146 Mass. 224; 16 N. E. 34.
5 Birmingham National Bank v. Roden, 97 Ala. 404; 11 So. 883; Wonson v. Fenno, 129 Mass. 405; Sewall v. Ry.. 9 Cush. (Mass.) 5.
6 Draper v. Stone, 71 Me. 175.