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.
Contracts for the sale of realty or interests therein are frequently enforced in equity by the remedy of specific performance,1 and it is in contracts of this sort that the original rule requiring strict and literal performance is first relaxed and substantial performance is recognized.2 At a relatively early period, equity enforced contracts for the sale of realty even if such performance fell short of a strict and literal performance, as long as such contract was performed substantially.3 compliance with a building contract is not essential to a recovery thereon, but a performance thereof in all its material and substantial particulars is sufficient." Robinson v. Beaty, - Okla. - 181 Pac. 941.
2 Colorado. Ross Mining Co. v. Seth-man, 50 Colo. 33, 114 Pac. 287.
Connecticut. West v. Suda, 69 Conn. 60, 36 Atl. 1015; Pratt v. Dunlap, 86 Conn. 180. 82 Atl. 195.
Illinois. Evans v. Howell, 211 111. 85, 71 N. E. 854; Concord Apartment House Co. v. O'Brien, 228 111. 360, 81 N. E. 1038.
Iowa. Littell v. Webster County, 152 Ia. 206, 131 N. W. 691, 132 N. W. 426.
Louisiana. Dugue v. Levy, 114 La. 21, 37 So. 995.
Massachusetts. Handy v. Bliss, 204 Mass. 513, 134 Am. St. Rep. 673, 90 N. E. 864.
Ohio. Goldsmith v. Hand, 26 O. S. 101; Kane v. Stone Co., 39 O. S. 1; Ashley v. Henahan, 56 O. S. 559, 47 N. E. 573.
Oklahoma. Mitchell v. Spurrier Lumber Co.. 31 Okla. 834, 124 Pac. 10.
Oregon. Pippy v. Winslow, 62 Or. 219, 125 Pac. 208.
Pennsylvania. Morgan v. Gamble, 230 Pa. St. 165, 79 Atl. 410.
Utah. Foulger v. McGrath, 34 Utah 86, 95 Pac. 1004.
3 Keeler v. Herr, 157 111. 57, 41 N. E. 750.
1 See ch. LXXXIX.
2 See $ 2778.
3 Illinois. D'Wolf v. Pratt, 42 111. 198.
Kansas. Keepers v. Yocum, 84 Kan. 554, 114 Pac. 1063.
Maryland. Foley v. Crow, 37 Md. 51; Hammer v. Westphal, 120 Md. 15, 87 Atl. 488.
New Jersey. Van Blarcom v. Hopkins, 63 N. J. Eq. 466, 52 Atl. 147.
Ohio. Rees v. Smith, 1 Ohio 124.
Oregon. McCourt v. Johns, 33 Or. 561, 53 Pac. 601.
South Carolina. Alderman v. Mc-Knight, 95 S. Car. 245, 78 S. E. 982.
Virginia. Farris v. Hughes, 89 Va. 930, 17 S. E. 518.
West Virginia. Creigh v. Boggs, 19 W. Va. 240; Morgan v. Brast, 34 W. Va. 332, 12 S. E. 710.
A defective execution of a deed which is cured by a deed of confirmation as soon as the defect is noticed, does not prevent performance from being substantial. Nes v. Union Trust Co., 104 Md. 15, 64 Atl. 310.
A contract for the sale of an interest in realty may be substantially performed, although there is a slight variance between the duration of the estate for which the contract was made and the duration of the estate which is tendered in performance.4 A contract for the sale of the residue of a term of years which was said to be eight years, was held to be performed substantially by tendering an assignment of a residue for seven years and seven months.5 This result was reached in part on the theory that by a fair construction of the contract it could not be assumed that a term of the exact time specified would be assigned.6
Substantial performance has been held to exist, although there is a failure of title as to a small part of the realty, or a deficiency in the area specified in the contract,7 as where there is a shortage of about two hundred acres out of six thousand,8 or a shortage of between a tenth of an acre and a half of an acre out of twelve,9 or a shortage of ten acres out of two hundred and twenty-four, 10 or a shortage of twelve acres of comparatively worthless land out of about one hundred and forty-six,11 or a shortage of sixty-six acres out of three hundred,12 or a failure of title to one lot out of four, if the possession of such lot was not essential to the use of the other three.13 Even if the deficiency may otherwise be material, as where there was a total failure of title to two acres in the center of land which was sold as a park, the act of the purchaser in taking forceable possession of the realty may entitle the vendor to specific performance.14 This, however, is rather the result of waiver by the purchaser,15 than of substantial performance on the part of the vendor.
Language has, however, been used which seems to indicate that the existence of any deficiency in the quantity of the land prevents substantial performance and makes it improper to declare specific performance with compensation.16
4 Bel worth v. Hassell, 4 Camp. 140. 5 Belworth v. Hassell, 4 Camp. 140.
6 Belworth v. Hassell, 4 Camp. 140. 7 Poole v. Shergold, 1 Cox Gases 273,
2Brown Ch. 118; Hepburn v. Ault, 9U. 8. (5 Cranch) 262, 3 L. ed. 96 (dictum); Charles B. James Land ft Investment Co. v. Vernon, 129 Tenn. 637, 52 L R. A. (N.S.) 959, 168 S. W. 156; Morgan v. Brast, 34 W. Va. 332, 12 S. E. 710.
8 Hepburn v. Ault, 0 U. S. (5 Cranch) 262, 3 L. ed. 96 (obiter).
9 Heltzel v. Baird, 90 Or. 156, 175 Pac. 851.
10 McCourt v. Johns, 33 Or. 561, 53 Pac. 601.
11 Charles B. James Land ft Investment Co. v. Vernon, 129 Tenn. 637, 52 L. R. A. (N.S.) 959, 168 8. W. 156.
12 Morgan v. Brast, 34 W. Va. 332, 12 S. E. 710. (Failure of title as to twenty acres.)
13 Foley v. Crow, 37 Md. 51 (obiter).
14 Calcraft v. Roebuck, 1 Ves. Jr. 221.
15 See ch. LXXXIV.
A contract conditioned on confirmation by congress of a land grant is performed substantially if the grant for the allotment is confirmed, although the claim as to certain outlying pasture land is not confirmed;l7 and although such confirmation is by the court of private land claims instead of by act of congress.18
A contract for the conveyance of an interest in realty free from incumbrances is performed substantially, although minor incumbrances thereon exist.19 A contract for the sale of realty free from incumbrances is substantially performed, though incumbrances exist, if they are less than the amount of the purchase money,20 especially if a release of them is obtained and tendered.21 The fact that a third person has an easement of maintaining an underground pipe across a tract of land does not prevent a tender of a deed subject to such easement from being substantial performance of a contract to sell such realty free of all incumbrances; and the vendor may have specific performance against the purchaser subject to compensation for such easement.22 Under a contract for the sale of about fourteen acres of land, a defect as to the quality of two acres has been held to be consistent with substantial performance.23 A contract to sell bonds to be secured by a first mortgage is performed substantially if all but a few of the bonds secured by a prior mortgage are retired and if a fund is set aside to retire the few remaining bonds of the original issue, if the owners of such can not be ascertained.24 The existence of easements to which the realty is subject does not prevent substantial performance if such easements are of minor importance and affect but a small part of the realty.25
16 McKean v. Read, 16 Ky. (Litt. Sel. Cases) 395, 12 Am. Dec. 318.
17 Joseph v. Catron, 13 N. M. 202, 81 Pac. 439.
18 Joseph v. Catron, 13 N. M. 202, 81 Pac. 439.
19 Binks v. Rokeby, 2 Swanst. 222; Horniblow v. Shirley, 13 Ves. Jr. 81; Mansfield v. Wiles, 221 Mass. 75, 108 N. E. 901; King v. Bardeau, 6 Johns. Ch. (N. Y.) 38, 10 Am. Dec. 312.
20 Guild v. R. R, 57 Kan. 70, 33 L. R. A. 77, 45 Pac. 82; Smith v. Howard (Ky.), 105 S. W. 411; Posey v. Kimsey, 146 Ky. 205, 142 S. W. 703; Rife v. Lybarger, 49 O. S. 422, 17 L. R. A. 403, 31 N. E. 768.
21 McCourt v. Johns, 33 Or. 561, 53 Pac. 601.
22 Shepherd v. Croft , 1 Ch. 521.
23 Scott v. Hanson, 1 Russ. & M. 128.
24 Nes v. Union Trust Co., 104 Md. 15, 64 Atl. 310.
25 Melick v. Cross, 62 N. J. Eq. 545, 51 Atl. 16. (Defect waived by vendee. Vendor given specific performance with compensation to vendee.)
A contract to convey land to B is substantially performed where the grantor conveys to A, who then conveys to B.26 A contract for the sale of realty is performed substantially and possibly literally if the vendor has no title when he enters into the contract of sale, but acquires it thereafter before the time for performance on his part, especially if the purchaser knows of the condition of the title.27 A contract to pay a certain sum for land down and the balance in a certain time is substantially performed by the tender of the entire amount due, such tender being kept good.28