dissenting:

The majority’s use of standing doctrine to preclude a time-honored equitable remedy for breach of contract to sell real property is incorrect. This is not a standing case. The issue is whether under Guam law Mr. Guerrero has any interest in the land that he can convey to the Hemlanis. If he does, the Hemlanis are entitled to the remedy of specific performance. Therefore, I respectfully dissent.

The court today holds that the Hemlanis do not have standing to challenge the retroactive application of section 160 of the Civil Code of Guam, as amended in 1980, in their suit for specific performance. This puts the cart before the horse. The Hemlanis would have standing if Mr. Guerrero under Guam law has an interest that he could convey. To say he cannot obtain specific performance because he lacks standing to raise Mr. Guerrero’s claims is to import into Guam property law an alien doctrine of jurisdiction rooted in the Constitution of the United States.

Under California conveyancing law, which Guam generally follows, a buyer of real property may assert a claim for specific performance with respect to that part of the property the seller actually owns; the seller cannot attack his title to escape the contract of sale.

The leading ease on this point continues to be Miller v. Dyer, 20 Cal.2d 526 , 127 P.2d 901 (1942) (per Traynor, J.), in which the California Supreme Court articulated the applicable principles:

20 Cal.2d at 528-29 , 127 P.2d at 903 (citations omitted). 1

The Hemlanis therefore have a right to specific performance of whatever property interest Mr. Guerrero owns. As Justice Traynor in Miller pointed out, Mr. Guerrero cannot convey a title that he does not possess, or conversely, the court can command specific performance of that which he does possess. Id. at 528 , 127 P.2d at 903 .

The majority is on sounder ground analytically when it purports to answer this issue of Guam law by holding that the 1980 statute divests Mr. Guerrero of his ability to convey any interest of any kind in the co-tenancy. I am not so certain that this is the only plausible interpretation of this statute. Under the doctrine of specific performance, the Hemlanis are entitled to whatever property interest Mr. Guerrero owned. The statute may mean that Mr. Guerrero has no interest to convey. On the other hand, the Hemlanis perhaps could acquire whatever rights Mr. Guerrero possessed, which would include a veto power over Mrs. Guerrero’s power to convey the property. This would not be valueless. On this record, we cannot fairly determine the state of Guam law.

The majority, in effect, assumes that under Guam law Mr. Guerrero has no interest he can convey. Whether section 160(a) has that effect is precisely the question at issue in this case. The law of standing as employed by federal courts cannot properly supply the answer and the majority’s resolution of Guam law leaves me uncertain as to the reason for its reliance on notions of standing in the initial portion of its opinion.

In theory, Mr. Guerrero could bring a declaratory judgment action requesting the court’s interpretation of the statute as to his ability to convey any interest in the property. Mr. Guerrero obviously no longer has any desire to bring such a suit. The Hemlanis cannot bring such an action until they obtain a decree of specific performance which, in turn, rests upon the meaning of section 160(a).

Possibly the majority’s reading of the statute is correct; however, it would be much more appropriate on our part to seek a determination of this issue initially by a Guam court. The proper solution is to remand the case for a determination whether section 160(a) strips Mr. Guerrero of any interest in the property that he alone could alienate. Should that not be the effect of *1417 section 160(a), the decree of specific performance should be entered unless, of course, the Hemlanis decide that what they can acquire is not worth the price and drop this action.

. Subsequent California cases have adhered to this reasoning. See, e.g., Collins v. Marvel Land Co., 13 Cal.App.3d 34, 41 , 91 Cal.Rptr. 291, 294 (Ct.App.1970) (holding that plaintiffs’ “willingness to purchase the property involved with or without the easement of ingress and egress" means that a contract for sale may be specifically enforced over vendor's objection); Weneda Corp. v. Dispalatro, 225 Cal.App.2d 187 , 37 Cal.Rptr. 267, 270 (Dist.Ct.App.1964) (holding that "the fact that the defendants did not have a clear title to the property did not foreclose the plaintiff from demanding whatever interest they may have had therein, and enforcing performance of the contract accordingly"); see also Carpenter v. Folkerts, 29 Wash.App. 73, 75 , 627 P.2d 559, 562 (Ct.App.1981) (holding that where the vendor has the power to perform the sale of real property, he may not claim the defense of "impossibility" on the basis of a title defect).