Page:Federal Reporter, 1st Series, Volume 2.djvu/662

rOLMAK V. LEATHERS. 655 �been drawn but not delivered. Suppose, as things then stood, instead of the marriage, either Leathers or Tolman had refused to proceed further. If Tolman had written to his agent to return the draft, and refused to loan the money, oould Leathers have had a specifie performance of the contract by tendering the notes and mortgage ? Specifie performance here would be a decree that Tolman loan the money and aecept the secur- ity. I imagine no such case of specifie performance can be found. �The reason is obvions. It is a case for damages at lavr. Mr. Leathers could borrow the money of some one else, and recover for the trouble and expense, and difference in rate of interest, which wonld be fuU compensation for Tolman's vio- lation of the contract to lend. It is stiU clearer that, if Leathers had declined to go further, Tolman could not in a court of equity compel Leathers to aecept the money and execute the mortgages. If the case had gone so far that Leathers had received the money, it might be otherwise ; but \rith his own money in his pocket I do not see how the court could compel Leathers to take it, and then compel him to make the mortgage. �The reason is the same as in the other case. Mr. Tolman could use his money otherwise, and recover from Leathers the injury suffered in losing one contract andtaking the other. �It seems to me that m. neither is the contract, as it then stood, one on which a court would decree a specifie perform- ance, and if so, there could be no vested right at the time in the land in Mr. Tolman. The homestead right, under the lowa statutes, only extends to 40 acres eut of the 160; that is, the quarter section of that quarter section on which the dwelling stands. �The bill makes an attempt to set up rights in plaintiff nnder a mortgage for $800, to another person, which was paid off by the money loaned by Tolman to Leathers. The facts on which the claim of Tolman to be subrogated to the rights of that mortgage depends are very imperfectly stated, and as I am of opinion that a case may exist in which, after applying the value of the 120 acres, not part of the homestead, ����