The authorities are unanimous in holding that the remedy of specific performance is purely equitable in nature. Travel Consultants, Inc. v. Travel Management Corp., 367 F.2d 334, 337 (D.C. Cir. 1966), cert. denied, 386 U.S. 912, 87 S.Ct. 861, 17 L.Ed.2d 785 (1967); Sinclair Refining Co. v. Miller, 106 F. Supp. 881, 885 (D.Neb. 1952). See also 5 Moore, Federal Practice ยถ 38.21, at 179 (2d ed. 1966); 2B Barron and Holtzoff, Federal Practice and Procedure ยง 875.1, at 43-44 (Rules ed. 1961); 49 Am.Jur. Specific Performance ยง 2 (1943).
Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 352-53 (1961); Hedberg v. State Farm Mut. Auto. Ins. Co., 350 F.2d 924, 928 (8th Cir. 1965). Defendant cites the case of Sinclair Ref. Co. v. Miller, 106 F. Supp. 881 (D. Neb. 1952), for the proposition that in actions relating to real property where title is at issue, the value of the property is used to determine the amount in controversy. However, Nebraska law provides that forcible entry and detainer is a special statutory proceeding designed to provide a speedy and summary method by which the owner of real estate can regain possession of it. Cummins Mgmt., L.P. v. Gilroy, 667 N.W.2d 538, 542 (Neb. 2003).
Specific performance of a contract, fair when made, will not necessarily be denied because it has become a hard bargain through subsequent events and changed conditions, and it would be error to refuse to grant a decree of specific performance in the absence of circumstances indicating fraud or bad faith. Id. (citing 49 Am.Jur., Specific Performance, ยง 49); see also Sinclair Refining Co. v. Miller, 106 F. Supp. 881, 885-886 (D.Neb. 1952). This Court concludes that there is no unconscionability here.
It is conceded that an option to lease or to convey, based on a valuable consideration, may be specifically enforced. See, Corbin on Contracts, vol. 5A, p. 372; Willard v. Tayloe (1869) 8 Wall. 557, 567, 75 U.S. 557, 567, 19 L.Ed. 501; Sinclair Refining Co. v. Miller (D.C.Neb. 1952) 106 F. Supp. 881, 885. The defendants, however, relied on the following grounds enumerated in their proposed Findings of Fact herein, as justification for their refusal to comply with the options and as a basis for denial of the right of specific performance in this case: (1) mental incompetency on the part of the intestate; (2) invalidation of the options by the failure of the plaintiff to make rental payments as required under the leases; (3) gross inadequacy of consideration; (4) hardship; (5) lack of mutuality of remedy in the leases; and (6) indefiniteness in the terms of the leases.
Finally, Black objects to the order of specific performance because the building has been torn down. Generally, the mere fact that the value of property which is the subject of a contract has increased or diminished since the contract was executed will not warrant a court in refusing to grant a decree of specific performance, absent circumstances indicating fraud or bad faith. Sinclair Refining Co. v. Miller, 106 F. Supp. 881 (D. Neb. 1952); City of University Place v. Lincoln Gas Electric Light Co., 109 Neb. 370, 191 N.W. 432 (1922). There is no showing in the record before this court that plaintiffs acted fraudulently or with bad faith.
Thus to deny specific enforcement of such a contract on equitable grounds is tantamount to granting rescission, and should rest on the same basis and result in the same substantive relief. Sons of Temperance v. Brown, 9 Minn. 144 (157); General American Life Ins. Co. v. Natchitoches Oil Mill (5 Cir.) 160 F.2d 140; Sinclair Refining Co. v. Miller (D. Neb.) 106 F. Supp. 881; Hayes v. Disque, 401 Ill. 479, 82 N.E.2d 350; McKeever v. Washington Heights Realty Corp. 183 Md. 216, 37 A.2d 305; Restatement, Contracts, ยง 360; Annotation, 65 A.L.R. 7, 39. Buckley v. Patterson, 39 Minn. 250, 39 N.W. 490; 81 C.J.S., Specific Performance, ยง 163; Rules of Civil Procedure, Rule 54.03.
The court nisi did not err in holding that the fairness of the contract was to be decided upon the value of the property at the time the option was granted. Tuckwiller v. Tuckwiller, 413 S.W.2d 274, 278[4] (Mo. 1967); Roberts v. Clevenger, 225 S.W.2d 728, 733[10] (Mo. 1950); Stringer v. Reed, supra, 544 S.W.2d at 75[11]; Sinclair Refining Co. v. Miller, 106 F.Supp. 881, 885-886[11] (D.Neb. 1952); Steen v. Rustad, 132 Mont. 96, 313 P.2d 1014, 1021[15] (1957); 71 Am.Jur.2d, Specific Performance, ยงยง 82 and 83, pp. 111-115; Annot, 11 A.L.R.2d 381, Specific Performance โ Changes, ยง 3, pp. 397-401, ยง 6, pp. 406-413. Judgment affirmed.
Accordingly cases cited by defendants in which the purchasers are shown to have known at the time of the contract that the land bargained for had an actual value greatly in excess of the contract price are not in point. While defendants have proved hardship in the sense that they would realize substantially more in a sale of their property at its present market value rather than at the option price, a modern court of equity cannot force a party to renegotiate a contract for the sale of land solely in the light of changes in land values occurring after the date of the contract, Sinclair Refining Co. v. Miller, D.C.S.D.N.Y., 106 F. Supp. 881; Cities Service Oil Co. v. Viering, 404 Ill. 538, 89 N.E.2d 392, 13 A.L.R.2d 1448; 49 Am.Jur., Specific Performance, ยง 64, p. 78 and Annotation, 11 A.L.R.2d 390, at page 406 Compare Glenn v. Tide Water Associated Oil Co., Del. Ch. , 101 A.2d 339, in which it was held that mere inadequacy of consideration does not in itself justify a denial of the right of specific performance. Despite comments as to what constitutes hardship justifying denial of specific performance in cases such as Willard v. Tayloe, 8 Wall. 557, 19 L.Ed. 501; Godwin v. Collins, 3 Del. Ch. 189, aff.
In the majority of those cases the options were held specifically enforcible by the oil companies, and in some of them conventional rules were applied to the effect that options to purchase for fixed sums are not voided merely because of a subsequent enhancement in the value of the property. See Shell Oil Company v. Boyer, 234 Or. 270, 381 P.2d 494 (Sup.Ct. 1963); Gulf Oil Corp. v. Clark, 169 F. Supp. 717 (D. Md. 1959); aff'd 273 F.2d 195 (4 Cir. 1959); Cities Service Oil Co. v. Viering, 404 Ill. 538, 89 N.E.2d 392 (Sup.Ct. 1950); Sinclair Refining Co. v. Clay, 102 F. Supp. 732 (N.D. Ohio 1951), aff'd 194 F.2d 532 (6 Cir. 1952); Texas Co. v. Crown Petroleum Corp., 137 Conn. 217, 75 A.2d 499 (Sup.Ct. Err., 1950); Sinclair Refining Co. v. Miller, 106 F. Supp. 881 (D. Neb. 1952); Glenn v. Tide Water Associated Oil Co., 34 Del. Ch. 198, 101 A.2d 339 (Ch. 1953); Sinclair Refining Co. v. Allbritton, 147 Tex. 468, 218 S.W.2d 185 (Sup.Ct. 1949); Rice v. Sinclair Refining Co., 256 Ala. 565, 56 So.2d 647 (Sup.Ct. 1952); Shell Oil Co. v. Kapler, 235 Minn. 292, 50 N.W.2d 707 (Sup.Ct. 1951); Humble Oil Refining Co. v. Lennon, 94 R.I. 509, 182 A.2d 306 (Sup.Ct. 1962), cited supra; Gulf Oil Corp. v. Rybicki, 102 N.H. 51, 149 A.2d 877 (Sup.Ct. 1959); Gulf Oil Corp. v. Montanaro, 94 N.J. Super. 348 (Ch.Div. 1967) cited supra. In other service station cases specific performance was denied.