lots "to the satisfaction of Church & Cory, attorneys." It was conceded that there was a defect in the title when the notes were executed requiring action by the plaintiff to cure ; and it was not shown that the disapproval of the title by the attorneys named was through any fraudulent or improper motive. It was held that as the parties had made the attorneys the umpires between them, if the latter exercised their best judgment in good faith, their conclusion was final and binding, and not subject to the revisory power of the courts without doing violence to the plain words of the contract. This upon the principle upheld in many cases and stated in Butler v. Tucker, 24 Wend. 445, 449, as follows: "But when parties fix on an umpire and agree to abide by his decision, neither of them, without consent of the other, can withdraw the question of performance from the common arbiter for the purpose of referring it to the decision of a jury."

In Bank v. Clay, supra, it appeared that a contract for the sale of an oil and gas lease stipulated that the vendor should furnish to the plaintiffs a complete abstract of title to the land to be submitted to a certain named attorney for the vendees, and that the lease should take effect and the mutual obligations of the parties accrue only in case such attorney should approve the title. The abstract was furnished and upon examination by the attorney named he disapproved the title. Suit was thereupon brought by the vendees to recover a sum of money which had been deposited by them as "earnest money" to secure their faithful performance of the contract. The plaintiffs were allowed to recover, and the following rule was stated: "A vendee cannot be compelled to accept a title which is in fact perfect, but which his attorney in good faith refuses to approve where his contract requires the title to be perfected to the satisfaction of such attorney."

In the English case above cited, Hudson v. Buck, the contract provided for approval of title by the solicitor of Buck, the vendee. And it was held that said solicitor having disapproved the title, the vendor could not enforce specific

performance, in the absence of mala fides or unreasonableness on the part of the purchaser or his solicitor. Discussing the question, the court said:

"What, then, does the law imply in the sale of a leasehold property? It implies that the vendor shall make a good title to the property. Is that the same thing as a stipulation that the contract shall be subject to the approval of the title by the purchaser's solicitor? It appears to me that it is not. Observe the difference between the results in the two cases. In the one case the approval or disapproval of the person specified is, in my opinion, in the absence of bad faith or unreasonable conduct, conclusive as to the goodness of the title shewn. In the other case the goodness of the title may be a matter for the decision of the court. It appears to me that it is not unreasonable to suppose that the purchaser should desire to preclude the possibility of such a protracted litigation, and that he should intend to stipulate that the opinion of a particular person, his own solicitor, should be conclusive as to the sufficiency of the title deduced, and that, in the absence of compliance with that condition, the contract should not be capable of being enforced."

* * *

Thus upon the theory that the contract requires the defendants to convey the land in controversy to the plaintiffs, the requisite mutuality of obligation and remedy to justify a decree for specific performance would be lacking, under either provision of the contract relating thereto. In Frank v. Stratford-Hadncock, 13 Wyo. 37, 77 Pac. 134, 67 L. R. A. 571, 110 Am. St. Rep. 963, after stating that several socalled exceptions to the general rule that as a prerequisite to specific performance there must exist both mutuality of obligation and remedy had become established in modern equity practice, this court said:

"Where a contract is intended to bind both parties, or where it is of such form or nature that it contains inutual executory provisions, that is to say, where both parties have bound themselves or intended to bind themselves by reciprocal obligations, then no doubt the doctrine as to the requirement of mutuality applies; and in such a case, if for any

reason one of the parties is not bound, he cannot compel performance by the other."

And in our opinion that principal would apply to the contract in this case if it is to be construed as obligating the defendants to convey this land upon the facts aforesaid. We do not, however, understand the obligation of defendants to convey land to which title shall be obtained within two years to be as broad as plaintiffs contend. The agreement in that respect does not stand alone but is qualified by the provisions for tendering title within said period and submitting at the expiration thereof muniments of title then possessed, for examination as to whether the title is good. and sufficient in case of a tender, or the determination provided for upon the submission of muniments of title as to whether they are sufficient to warrant conveyance or acceptance. So that the defendants would not become obligated to convey any particular parcel of the land described unless title thereto was obtained and they were also in a position, acting diligently and in good faith, to tender good and sufficient title within said two-year period, or, at the expiration of said period could produce and submit muniments of title that might be declared sufficient to warrant conveyance under the provision of the contract for a determination as to that matter.

And without an obligation to convey there would be no ground for specific performance. Certainly the agreement to use all due diligence to obtain title within the period named, standing alone, would not furnish a basis for specific performance. (Parker v. Sargent, 201 Ill. App. 574) In the case cited it was held that an agreement of a defendant to use his "best endeavors to convey" property to the complainant is not an agreement to convey. But here it is alleged that due diligence was used to obtain title.

For the above reasons the judgment denying specific performance must be affirmed. But there is a further ground upon which we would feel constrained also to affirm the judgment, and that is the laches of the plaintiffs in asserting their alleged right, in view of the changed conditions affect

ing the value of the land and the rights and interest of the parties.

A decree for the specific performance of a contract for the sale of real estate does not go as a matter of course, but is granted or withheld according as equity and justice seem. to demand in view of all the circumstances of the case. (McCabe v. Matthews, 155 U. S. 550, 15 Sup. Ct. 190, 39 L. Ed. 253.) And courts of equity will not decree specific performance when to do so would be plainly inequitable and unjust. (Pomeroy v. Fullerton, 131 Mo. 581, 33 S. W. 173.) In Holgate v. Eaton, 116 U. S. 33, at page 40, 6 Sup. Ct. 224, 29 L. Ed. 538, it is said by Mr. Justice Miller that the following language of Mr. Justice Story in Taylor v. Longworth, 14 Pet. 172, 174, 10 L. Ed. 405, has become a legal maxim in this class of cases, viz: "In the first place, there is no doubt that time may be of the essence of a contract for the sale of property. It may be made so by the express stipulation of the parties, or it may arise by implication from the very nature of the property, or the avowed objects of the seller or purchaser. And even when time is not, thus, either expressly or impliedly, of the essence of the contract, if the party seeking a specific performance has been guilty of gross laches, or has been inexcusably negligent in performing the contract on his part; or if there has, in the intermediate period been a material change of circumstances, affecting the rights, interests or obligation of the parties; in all such cases courts of equity will refuse to decree specific performance, upon the plain ground that it would be inequitable and unjust.”

In Pickering v. Pickering, 38 N. H. 400, the court said, stating a well-settled principle: "Relief by specific performance is matter not of absolute right in the party, but of sound, reasonable discretion in the court, and the granting of such relief must always be entirely equitable. The court will never compel specific performance, where, looking at all the circumstances on both sides, it is apparent that injustice would or might probably be done thereby."

In such cases a court of equity will not allow of a delay which would enable a party to take advantage of the turn of the market, and have the contract performed, only in case it suits his interest. And in Drees v. Waldron, 212 Fed. 93, 128 C. C. A. 609, it is said: "The existence of laches is primarily determined not by lapse of time but by considerations of justice." In Patterson v. Hewitt, 195, U. S. 309, . 25 Sup. Ct. 35, 49 L. Ed. 264, the court by Mr. Justice Brown, speaking for the court, states the rule applicable under circumstances such as are found in this case as follows:

"The defence of laches which prompted the dismissal of the bill in this case, has so often been made the subject of discussion in this court that a citation of cases is quite unnecessary. Some degree of diligence in bringing suit is required under all systems of jurisprudence. In actions at law, the question of diligence is determined by the words of the statute. If an action be brought before the statutory time expires, it will be sustained; if a day after, it will be defeated. In suits in equity the question is determined by the circumstances of each particular case. The statute of limitations consorts with the rigid principles of the common law, but is ill adapted to the flexible remedies of a court of equity. The statute frequently works great practical injustice the doctrine of laches, never. True, lapse of time is one of the chief ingredients, but there are others of almost equal importance. Change in the value of the property between the time the cause of action arose and the time when the bill was filed; complainant's knowledge or ignorance of the facts constituting the cause of action, as well as his diligence in availing himself of the means of knowledge within his control, are all material to be considered upon the question whether the suit was brought without unreasonable delay."

In an opinion by the same learned justice, in a case involving mining property, where there had been a great increase in value, it is said: "Under such circumstances, where property has been developed by the energy and at