#### E. A. Rea, Appellee, v. John A. Ferguson, et al., Appellants.

Specific performance: parties. Where a deed to real property I pursuant to a contract of sale was deposited with a bank in escrow, the bank was a proper party to an action for specific *705performance of the contract where delivery of the deed was part of the relief asked, and especially where the hank had taken a mortgage upon the property subsequent to the execution of the contract.

Specific performance: jurisdiction. The courts of this State have 2 jurisdiction to decree specific performance of a contract for the sale of land situated in another State, where the parties to the action are residents of Iowa.

Decree: election of remedies. In a suit by the purchaser for spe-3 cific performance of a contract to convey land, the defendant is not entitled to a decree authorizing him to elect whether he will return the amount paid on the purchase price or accept the balance due and deliver the deed, where time was not the essence of the contract or where he had taken no steps to declare a forfeiture, and especially when such reliei was not asked by pleading or otherwise.

*Appeal from Van Burén District Court.*— ’BEoN. ERobekt SloaN, Judge.

Tuesday, March *7,*1905.

ActioN in equity for tEhe specific performance of a contract to convey real estate, entered into between the plaintiff, ERea, and the defendant, Ferguson. The contract was reduced to writing, and bears date December 4, 1902. Therein it is provided that the real estate, the subject thereof, and being a farm in ClarEke county, Mo., shall be conveyed to Rea by Ferguson upon full payment of the sum of $16,500; the conveyance to be by warranty deed, accompanied by an abstract of title showing perfect title. Payments of the purchase price were provided to be made as follows: $7,500 at time of execution of the contract, and $9,000 March 1, 1903. Concerning the title, it is further provided that, if any imperfections appear in the abstract, Ferguson agrees to correct same within a reasonable time. If title is not perfected by March 1, 1903, ‘‘’so that the same would be approved by a loan company,” then Ferguson agrees to taEke a first mortgage on the farm to secure the remaining payment, with interest at five per cent., and hold same until title can be *706corrected. In its closing sentence, the contract recites: “ The deed attached to this contract shall be left with the contract at Manning’s Bank, Keosauqua, to be delivered to E. A. Rea at any time when settlement is made as provided herein.” The controversy arising out of said contract, and" which is the subject of this action, together with the material facts, will be stated in the opinion. Erom a decree in favor of plaintiff, the defendants appeal.—

*Affirmed.*

*B&rJcheimer & Dawson, Wherry & Walker,*and *E. L. McQoid,*for appellants.

*Mitchell, Sloan & McBeth*and *Miles & Sleele,*for ap-pellee.

Bishop, T. — •

_ 1. Parties. I. It is alleged in the petition that the contract and deed were deposited with the defendant Manning’s Bank; that thereafter plaintiff offered .to perform on his part, and demanded of the bank delivery *7 % % J*of the deed in its possession, which the bank refused. Delivery of such deed is a part of the relief prayed for in the petition. On coming in, the bank moved for a dismissal 'of the action as to it; and this for the reason that the petition did not disclose any interest on its part, either in the contract or the result of the action,' and that it was neither a necessary nor a proper party. The motion was overruled, and of this the appellant bank complains. It may be conceded that the presence of the bank was not necessary to an action to enforce the contract. Bhit as the bank was the custodian of the deed executed, and as a delivery of such deed was prayed for, and could be enforced only by a decree binding upon the bank, and, as we shall see presently, as the bank had taken a mortgage on the real estate in question subsequent to the execution of the contract which was the basis of the action, its enforced presence as a party was not improper, to say the least. There was no error in the ruling.

*707s' |o!manCceTMR" jurisdiction. II. The defendant Ferguson assailed the petition by demurrer, the particular ground thereof being that the court had no jurisdiction, inasmuch as the real estate which was the subject-matter of the action was situated in the State of Missouri. As all the parties ^ ac-j¿orL resid6 in this State, the point made by the demurrer is ruled adversely to the contention of appellant by the decision in the. case of *Wright v. Leclaire, 3*Iowa, 221. The rule of that case was recognized and approved in the recent case of *Epperly v. Ferguson,*118 Iowa, 47.

3' electin' of rGih6(iics« III. It is not disputed but that the first payment of $7,500 was made by Eea to Ferguson at the time and as provided for in the contract. It appears that, after the making of the contract, Eea went to California for the winter, leaving the matter of perform-anee on his part to be attended to by an agent and his attorneys. An abstract of title was furnished by Ferguson, but the condition of the .title as shown thereby was made the subject of complaints and requirements on the part of said attorneys, and matters thus stood in an uncompleted condition on March 1, 190'3. Within a few days thereafter, Ferguson, who was. largely indebted to Manning’s Bank, executed and delivered to the bank a mortgage on the real estate in question to secure such indebtedness in the sum of $10,000, which mortgage was at once made a matter of record. Eea returned to the state during the month of March, and, having failed to secure a completion of the contract deal, this suit was brought. The answer filed by defendants — omitting reference to some matters not material to be considered, in the view 'we take of the case — alleged perfect title to the lands in Ferguson, as shown by the abstract furnished; that time was of the essence of the contract as to payment of the purchase price; and that plaintiff had failed to make such payment on March 1st, as provided in the contract. The prayer of the answer *708is that the petition be dismissed, with costs. By way of a subsequent pleading, and also while upon the stand as a’witness, plaintiff offered to accept of the deed to the land with the title as it then stood, and to pay the sum of $9,000, with interest from March 1st. This was followed by a statement on the part of the defendant Ferguson, while he was on the stand as a witness on his own behalf, that he had always been ready, and was ready then, to deliver to plaintiff the deed to the land upon payment of the $9,000 and interest, on condition that he (plaintiff) accept of Hie title as shown by the abstract.

Upon the case being submitted, the court found that the mortgage given to the defendant Manning’s Bank was intended simply to await the payment to be made under the contract by plaintiff, Bea; that such payment was to be made to the bank, and by it applied on the indebtedness of Ferguson, whereupon the mortgage was to be canceled. The decree then provided that in case the plaintiff, Bea, should pay to the defendant bank, for the use of the defendant Ferguson, the sum of $9,000, with interest from March 1, 1908, at 6 per cent, per annum, within forty days from the date of entry of the decree, or, invcase an appeal should be taken, then within forty days from the final disposition of such appeal, the defendant bank should thereupon cancel its mortgage and deliver to plaintiff the deed to the lands in its possession; further, that, if said sum of money should be so paid, the defendant Ferguson should be regarded as holding possession of the lands as a tenant of plaintiff, and should account to him for the rents and profits'. The value of the rents for the year 1903 was found to be $959, and judgment for that sum was ordered in favor of plaintiff against defendant Ferguson, conditioned only upon payment being first made by the former to the bank, provided for as stated above. The costs of the case were ordered taxed to defendant. ’

The contention for error in the decree as thus entered, *709made by appellant, is tbis: That tbe decree should bave given to defendant tbe right to elect whether be would return the $7,500 paid on tbe contract, or, on tbe other band, take tbe balance due, with interest, and deliver the deed. There are several reasons why tbe contention thus made should not be sustained. To begin with, time was not by tbe writing declared to be of tbe essence of tbe contract; and, should we concede, as contended for by counsel, that it was competent to establish by evidence aliunde that such was in fact tbe agreement, notwithstanding tbe letter of tbe writing, still it must be said that tbe record before us stops far short of proving that any such agreement was bad between these parties. But aside from all tbis, tbe defendant had taken no steps to declare a forfeiture. He bad not served a notice as required by sections 4299 and 4300 of the Code. Finally — and this is conclusive of itself- — -be did not ask tbe court, by pleading or otherwise, to enter a decree such as that be is now insisting should bave been entered.

In view of tbe attitude assumed by tbe respective parties, it is manifest to our minds that equity was accomplished by tbe decree as entered, and that we bave no need to enter upon inquiry into any collateral question respecting the character of tbe title to tbe lands, or to go any farther by way of a determination of what were the technical rights of tbe parties, growing out of tbe failure to perform on or before March 1, 1903.

Accordingly tbe decree is *affirmed.*