Where a party desires to avail himself of the equitable remedy of specific performance, he should proceed as promptly as the circumstances permit. Even a short delay may result in a situation making the pursuit of the remedy inequitable; and especially where, as here, the purchaser has not gone into possession and has enjoyed no valuable rights under the contract. For authorities, see Scott v. Desire, 175 Ill. App. 215; McDermid v. McGregor, 21 Minn. 111; Eastman v. Plumer, 46 N. H. 464; Colby v. Gadsden, 34 Beav. 418, 55 Eng. Reprint, 696, 17 L. T. N. S. 97, 15 Week. Rep. 1185; Fry, Spec. Perf. 5th ed. §§ 1100-1102; Pom. Spec. Perf. Contr. §§ 412, 425; 36 Cyc.

724.

For the foregoing reasons, the judgment appealed from is reversed, and the cause dismissed, with costs,

BRONSON, J. I concur in result.

GRACE, J. I concur in the result only.

ROBINSON, J. (concurring). This is a suit against the heirs and legal representatives of William States for the specific performance of an alleged contract to sell and convey 420 acres of land in town 162 of range 92. The plaintiffs aver that in April, 1908, they made with States a written contract to convey to him the land, and he agreed to pay for the same $11,000, with interest at 8 per cent, in eleven equal annual payments according to eleven promissory notes. In December, 1917, the district court gave judgment in favor of the plaintiffs for the nine payments that had become due, to wit, $9,000, with interest and taxes, amounting to nearly $17,000, and it was adjudged that the land be sold to satisfy the same, with costs and expense, subject to the payment of $2,000 and interest to become due, and subject to redemption within six months, and that an execution issue for any deficiency.

The appeal is taken by the administrator and the heirs of States. Now it appears that the deceased never took possession of the land, never paid a dollar on it, never gave either of the eleven promissory notes for payment, and never accepted the title. He at once repudiated

the contract, and the plaintiffs have always remained in possession and control of the land and have received the rents and profits, which they offered to apply on the judgment. Under such facts it seems nothing less than downright folly to bring an action for specific performance. Indeed, where a party has merely contracted to sell land, and the purchaser has never accepted the title or the land, and has never taken possession and has repudiated the contract, the seller has no right to an action for specific performance. His remedy is by an action for damages, and not by a forced and expensive sale of his own land. His measure of damages is the excess, if any, of the purchase price over the value of the property. Comp. Laws, § 7152. The presumption is that in any honest contract for the sale of land the agreed price does represent the fair value of the land; and if, for any reason, the purchaser refuses to accept the title and possession, that is no reason for a suit in equity, a judgment, and forced sale of the land. There is no reason for charging the party who breaches an agreement to purchase land with the cost of a suit, an expensive sale, and the difference between the original contract price and the figure at which the vendor may choose to bid in his own land. Such is not the measure of damages provided by the statute. It is high time for distinguished lawyers to learn better than to rush into a court of equity on every little dog-eared case which in no way contains any principle of equity. It is not good practice, either in Minot or elsewhere. The judgment should be reversed and the action dismissed, with costs.

FARMERS SECURITY BANK of PARK RIVER, NORTH DAKOTA, a Corporation, Respondent, v. C. R. VERRY and Hattie L. Verry, His Wife, Appellants.

(172 N. W. 867.)

Deeds-delivery delay in recording.

In this case it appears that during four years defendant C. R. Verry was cashier of the bank. By neglect of duty, and by wilfully permitting several accounts to be largely overdrawn, and by discounting and receiving many worthless notes, he became indebted to the bank in the sum of about $9,000.

To secure the same he and his wife made to the bank four deeds of real property. At his request the deeds were not put on record for five days, and in the meantime Verry did not keep good faith with the bank. He made to an insurance company a mortgage for $9,000, which was first recorded, and the bank lost the security given by three of the deeds. On the fourth deed the bank realized $2,700.26, and gave the cashier proper credit for the same, but his wife unjustly claims the money on the ground that Verry was not authorized to deliver the deeds, except to secure some insurance notes.

Opinion filed April 29, 1919.

Appeal from the District Court of Grand Forks County; Honorable Chas. M. Cooley, Judge.

Modified and affirmed.

W. S. Lauder, for appellants.

When there exists doubt as to the delivery of a deed, the true situation may always be shown by parol. Burke v. Dulaney, 38 L. ed. 698, and cases cited; 17 Cyc. 642, and cases cited in note 46; Branson v. Oregonian R. Co. (Ore.) 2 Pac. 86; Davies v. Jones, 16 C. B. 625; Hallis v. Littel, 11 C. B. N. S. 369; Wilson v. Powers, 131 Mass. 539; Pawling v. United States, 4 Cranch, 219; 2 Taylor, Ev. 8th. ed. §

1135.

The officials of the bank were chargeable with notice of Mr. Verry's authority concerning the deed. Merchants' Nat. Bank v. Ohio Co. (W. Va.) 50 S. E. 880. See also the following authorities: Dowden v. Cryder (N. J.) 26 Atl. 941; Tiedeman, Com. Paper, § 92; North River Bank v. Aymer, 3 Hill, 262; Stainer v. Tysen, 3 Hill, 279; Voltz v. Blackmar, 64 N. Y. 440; Stainback v. Reed, 62 Am. Dec. 648.

See also the case of Park Hotel Co. v. Fourth Nat. Bank, 86 Fed. 742. The opinion in this case is by Judge Sanborn and is an instructive case upon the point here under consideration.

See also: Rohrburg v. Express Co. (W. Va.) 50 S. E. 398; Gulick v. Grover, 33 N. J. L. 463, 97 Am. Dec. 728. On principle, the following authorities are in point: Northern Trust Co. v. First Nat. Bank, 25 N. D. 74, s. c. 33 N. D. 1.

E. Smith-Petersen and McIntyre & Burtness, for respondent.

"A delivery may be presumed from the grantee's possession of the instrument, in the absence of proof to the contrary." Brittain v. Work

(Neb. 14 N. W. 421; Parker v. Parker (Iowa) 8 N. W. 806; Hancock v. Dodd (Tenn.) 36 S. W. 742; American v. Frank (Iowa) 17 N. W. 464; N. D. Comp. Laws 1913, § 5497; Sargent v. Cooley, 12 N. D. 1; Ueland v. More Bros. (N. D.) 133 N. W. 543.

"There is no allegation of insolvency of either the plaintiff or principal debtor, or any other fact or circumstance to bring the demand within the principles of equity jurisprudence. N. D. Rev. Codes 1913, § 7449; Roberts v. Donavan (Cal.) 9 Pac. 180; Clark v. Sullivan, 2 N. D. 105.

Mrs. Verry gave the deed for her husband's benefit to secure his debt or liability to the bank, and cannot set up any secret understanding to defeat the deed. Ueland v. More, 133 N. W. 543; People's State Bank v. Francis, 8 N. D. 369.

So far as the homestead is concerned she did not occupy a more favorable position. People's State Bank v. Francis, 8 N. D. 369, 79 N. W. 853; Omlie v. O'Toole, 112 N. W. 677; Carroll County v. Ruggles, 69 Iowa, 275; Taylor Co. v. King (Iowa) 34 N. W. 775; Blume v. Bowman, 24 N. C. (2 Ired. L.) 338; Page v. Krekey, 21 L.R.A. 409, and note; Bank v. Boddicker, 45 L.R.A. 321, and note; Hendry v. Cartwright, 8 L.R.A. (N.S.) 1056, 89 Pac. 309.

ROBINSON, J. For several years the defendant was the cashier of the bank. The complaint charges, and it is a fact, that in his capacity as cashier he did wilfully permit numerous accounts to be overdrawn in large sums, and that he discounted and received many worthless promissory notes, some of which were given for his own use and benefit. While the findings of the trial court are mainly and justly in favor of the defendant, still several findings are against him, and so he appeals to this court.

The trial court found that the total amount of losses and damages sustained by the plaintiff was the sum of $8,506.52, on which the defendant was given credit for the proceeds of a quarter section of land, amounting to $2,700,26, and for services, $366,25; and he was charged with the net balance of $5,353.36, for which judgment was entered, with costs, amounting to $746.52.

The costs are clearly excessive and unreasonable, and a large part

of the cost was made in trying to prove groundless charges against the defendant Verry, who was to a great extent the prevailing party. He successfully defended against the great bulk of the claims charged against him. Hence, the costs item must be divided in two parts and only one part allowed as costs.

Aside from the question of costs, three matters were argued and submitted: (1) The first relates to the delivery of four deeds, marked exhibits 4, 5, 6, and 7, made by the defendants to T. Johnson, as grantee. (2) The second relates to the claim of defendant Mrs. Verry to recover from the bank $2,700.26, the price of a quarter section which she conveyed to the bank, and which it sold and gave credit on the account against her husband. (3) The third is in regard to the delivery of certificates to the bank for fifteen shares of stock.

Verry claims that at the time when he resigned as cashier of the bank the four deeds were given by himself and wife to secure insurance notes amounting to $10,000, and no more; that the conditions of the delivery were to be shown by a written agreement, which the bank refused to make and sign after obtaining actual possession of the deeds and the stock certificates. The assignment and delivery of the stock certificates stand in the same category as that of the deeds. It is claimed that the deeds were duly made and the certificates were duly assigned and left by C. R. Verry in the bank on the bank counters, or in the actual possession of the bank; that the evidence is not sufficient to disprove a delivery of the same and the equities are all in favor of a delivery to secure the sums justly due by Verry to the bank. It is fair to presume that Verry was disposed to close his dealings with the bank by giving security to pay the sums justly due, though he properly refused to sign an agreement pledging the deeds and securities for more than the sums due.

The four deeds, exhibits 4, 5, 6, and 7, were made at the same time and in the same manner. Each deed bears date, September 20, 1913, and is made by C. R. Verry and Hattie Verry, his wife, to T. Johnson. The express consideration is $1. Each deed is witnessed by the same parties and acknowledged before the same notary public on September 22, 1913, and recorded September 27, 1913. Though the deeds are thus made and signed by "C. R. Verry and Hattie L. Verry, his wife," as if he were the owner of the land, still it is claimed that