#### Cuban Production Company, Appellant, *v.*Jose Francisco Rodriguez, Respondent.

First Department,

February 7, 1908.

Specific performance — contract requiring foreign legal proceedings.

The court will" not-decree the specific performance of an agreement under a contract for sale of lands located in Cuba which requires the defendant to procure an official survey of the premises where, in order to obtain such survey, he would have to go to the island of Cuba and institute legal proceedings and • remain there during the pendency of such proceedings and there is no certainty that he could within a given lime, or ever, obtain such survey. The court, not being able to control the proceedings, will not require the defendant . to institute and control them.

*364Appeal by the plaintiff, the Cuban Production Company, from a judgment of the Supreme Court in favor of the defendant,- entered in the office- of the clerk bf the county of New York on .the 18th day of June, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

■ *Charles S.*Carrington, for the appellant.

*J. Hampden Dougherty,*for the respondent..

Laughlin, J.:

The action is brought to enforce the specific performance by the defendant of a single provision of a contract by which he and others-were - to convey to' the plaintiff two certain plantations known as “ San Jose de Bayatabo ” and “ Las Mercedes del Montelvan ” in the province of Puerto Principe, in the island of Cuba, containing 2,666f- acr.es of land more or less. The contract is in writing and was executed on or about the 25th day of January, 1901. The parties thereto are the plaintiff, a corporation duly incorporated under the. laws of Delaware, and the defendant and his mother and two stepbrothers, who derived their title and interest through one Mateo O. Rodriguez, the father of the defendant, who died in the .year 1880, seized of the premises in question. The purchase price specified in the contract is $70,000, $10,000 of which was to be paid in the capital stock of the plaintiff, which had already been delivered to two of the vendors as payment on account of a former contract for the sale thereof, bearing date the 14th day of September, 1899, and .the balance to be paid, $5,000 in cash and $55,000 in the capital stock of the plaintiff c: upon the delivery of proper deed or deeds and a record title ” as therein provided. The covenant on the part of the defendant, the specific performance of which is sought in this action", and the material provisions of the contract relating thereto are as follows: >

“ Jose F. Rodriguez, one of the parties of the first part, for himself, his heirs, assigns, executors and administrators, individually covenants and agrees with the party of the second part to forthwith and in the quickest-practicable possible time, to commence and take such steps as may be necessary to enable the parties of the first part to give the deeds as hereinbefore mentioned, and -

*365“ In consideration of same, the party of the second part covenants and agrees to advance to the said Jose F. Rodriguez such sum and sums of money as may be necessary to effect the same up to a siim not exceeding One Thousand Dollars, and it is mutually covenanted and agreed by and between the said Jose F. Rodriguez and the party of the second ■ part that all such sum or sums of money so advanced shall be deducted from the aforesaid Five Thousand Dollars to be paid to the said, Jose F. Rodriguez, and shall be applied as a payment on account of said Five Thousand Dollars in cash.”

These are the only provisions with respect to the time. within which the title should be perfected and deeds tendered. The parties evidently contemplated that considerable time would intervene, for it was expressly provided that the plaintiff should be at liberty to take immediate possession of the property, and it did take possession in the fall' of 1902. The evidence shows that good title to the premises could not be given and recorded until they were officially surveyed, and that this was one of the things that the defendant obligated himself to have done; but the evidence fails to show whether it was the only step contemplated to be done by him under his special agreement.

It does not appear that either party was very active or diligent with respect to the performance of this special agreement. The plaintiff never formally tendered any money to the defendant for the expenses of the survey, but’ on the other hand, we are of the opinion that the evidence does not sustain the finding that the defendant demanded the payment of the money for the expenses, which was refused by the plaintiff. That fact is, however, quite immaterial, for, as we view the case, it is not one in which a specific performance should be decreed. It appears by the evidence that the deeds.convey in g the interests of the parties, could be lawfully executed, although they could not be recorded without an official survey. The action, however, is not to compel a specific performance of the contract with respect to conveying the premises. The allegations of the complaint and the prayer for relief confine the action to a demand for specific performance of this special agreement on tlie part of the defendant. It appears by the evidence that there are two forms of official surveys, one of which ■' embraces merely the *366land in question, and the other embraces the entire tract embraced in the original'royal grant, known as a “fundo.” It appears that the heirs of a party receiving a grant from the crown, instead of each taking a certain number of acres by agreement, would appraise the value of the land and each would then take his percentage of the total in value “ in possession ” or so many *“jpesos deposesión*/• ” and each w'ould settle in a different place, called a “ sitio,” without á survey, and cultivate that section as his own.. As each heir died the same practice follows; and each might also sell off a percentage of the valuation allotted to him as So many “ dollars in possession ” or “ pesos de posesión.” This practice continued until the enactment of the new recording statute. It was evidently enacted under the American rule in Cuba. The statute with respect to the surveys is not set forth, but the testimony of a duly licensed, attorney in the island of Cuba indicates that it is a summary proceeding in court by which *interested*parties receive notice and are i-equired *to*'appear before the court or official surveyor, and the determination with respect to the division lines between the respective owners becomes binding upon all who are duly summoned subject to a right of appeal which apparently exists. It does not clearly appear whether it will suffice to have an^ official survey of the premises occupied by the defendant’s father, only on notice to the immediate abutters or whether ,it will he necessary to officially survey the entiré, “fundo” of which it is a part; but it tends to show that unofficial survey of the. entire “ fundo ” may be necessary. Apparently the proceeding for an official survey may only be demanded by an heir or person directly deriving title through the former owner. Although the law does not require that the party calling for tile official survey should be present, it is manifest that the proper protection of his rights and interests may.require his presence ; and it appears that the defendant could not with safety remain away during the proceeding. If it were a proper case for a decree of specific performance, the. plaintiff, being in possession, might perhaps be relieved from its failure to tender to the defendant the money for his expenses in making the survey, as provided in the contract. . We are of opinion, however, that the-court should not attempt to enforce the specific performance of a contract of this kind. The court should not make a decree where it is not clear *367that'it may be carried into effect. The court cannot supervise this survey. There is no certainty tliat the defendant could within a given time or ever obtain an official survey by which good title to the premises could be given and recorded, and the court should not. make a decree that would require him to go to the island of Cuba and there institute proceedings of a legal nature and be responsible, for the final determination thereof,- which necessarily must rest with others. As this.court cannot, control the proceedings it should not command the defendant to institute and control it.

It follows, therefore, that the judgment .should be affirmed, with costs.

Patterson, P. J., Ingraham, McLaughlin and Houghton, JJ., ■ concurred.

Judgment affirmed, with .costs.