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Statement of case.

factory title free of incumbrances.” The plaintiffs gave prima facie evidence that John R. Peters, the vendee, tendered complete performance on his part at the time and place specified, and that Mr. Delaplaine, then and there, failed to perform on his part.

The action was commenced March 25, 1869. The contract was under seal. Mr. Delaplaine, the vendor, was a married man, and, at the time of refusing to perform, he assigned as a reason that his wife would not “sign the deed.” This lady died shortly after July 17, 1866, and the plaintiffs contended that their cause of action arose at that time.

John F. Delaplaine, the vendor, died about June 3, 1854; John R. Peters, the vendee, died April 24, 1858.

The contract price of the property agreed to be sold was $30,000. Its value had become enhanced to more than ten times that amount.

The vendor, or his representatives, continued at all times in possession, and in receipt of the rents and profits, without recognizing any right in or claim of the vendee or his representatives.

The court decided that the equitable remedy for specific performance, not having been sued for within ten years, was barred by the statute of limitations. The complaint was, therefore, dismissed, the plaintiffs excepting.

Edgar S. Van Winkle for the appellants. This is an action on a sealed instrument, and is not barred by the statute until twenty years after the cause of action accrued. (Code of 1849, SS 69, 73, 74, 90, 97, 120; 2 R. S., 291; Mayor, etc., v. Colgate, 12 N. Y., 140; Borst v. Corey, 15 id., 505; Balch v. Onion, 4 Cush., 559; Thayer v. Mann, 19 Pick., 535; Elkin v. Edwards, 8 Geo., 325; Heyer v. Pruyn, 7 Paige, 465.) The cause of action did not arise until after Mrs. Delaplaine's death, as prior to that it could not have been maintained. (In the Matter of llunter, 1 Ed. Ch., 6; Downs v. Collins, 6 Hare, 437; Mills v. Van Voorhis, 23 Barb.,

Opinion of the Court, per CHURCH, Ch. J.

125; Morss v. Elmendorf, 11 Paige, 277; Jones v. Gardner, 10 Johns., 267; Knowles v. McComly, 10 Paige, 342; 1 Sugd. Vend. & P., 330.)

Charles O'Conor for the respondents. Ten years having elapsed after the alleged breach, the action was barred. (Bruce v. Tilson, 25 N. Y., 194; 30 Barb., 178; Peabody v. Roberts, 47 id., 103; 2 R. S., 301, SS 51, 52; Roberts v. Sykes, 8 Abb., 350 ; 30 Barb., 178; Taylor v. Delancey, 2 Caine's Cases, 151; Goodell v. Jackson, 20 John., 722; Howard v. Thompson, 21 Wend., 319; Douglass v. Howland, 24 Wend., 47; Theriah v. Hart, 2 Hill, 381.) The right of action accrued May 1, 1852. (Woodbury v. Luddy, 14 Allen, 2, 6, 7; Davis v. Parker, id., 98, 104; Harsha v. Reid, 45 N. Y., 419.) Where such circumstances attend the case, and so long a period as seventeen years has elapsed without any steps being taken by vendor or.vendee, no court of equity would enforce specific performance against either. (Mc Williams v. Long, 32 Barb., 194; Bruce v. Tilson, 25 N. Y., 202, and authorities there cited; Olcott v. Wood, 4 Kern., 40; Story's Eq. Jur., SS 742, 776.)

CHURCH, Ch. J. If the statute of limitations does not constitute an absolute bar to the action, no court would ever decree a specific performance of the contract at this late day, and under the circumstances of the case. The action was commenced seventeen years after the making of the agreement and the refusal of the vendor to perform the same. In the mean time both of the original contracting parties had died, the one eleven and the other fifteen years before bringing the action.

The property has increased in value from thirty thousand to three hundred thousand dollars, and during all the time the vendor and those who have from time to time succeeded to his estate in the premises, have received large sums for rents, issues and profits, and have necessarily paid the taxes and assessments upon the property, and a specific performance

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Opinion of the Court, per CHURCH, Ch. J.

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of the contract will necessarily require a statement of an account with the several parties in respect of the receipts and expenditures connected with the premises. The title to the premies has become vested in the defendants, some claiming under the will of the original vendor either as trustees or in their own rights, and others under the will of a son of the vendor, taking a part of the property by devise from his father, and who survived his father some twelve years. Portions of the estate are held under various trusts administered by trustees appointed by the court.

Among the defendants and parties in interest is one lunatic, several married women and infants, one benevolent institution claiming under the will of Isaac C. Delaplaine, and the trustees of the different trusts and the personal representatives of one of the decedents named. It would not be easy upon adjudging a specific performance of the contract before us to adjust all the equities of the different parties as between themselves, and it is quite certain that the present owners of the property and parties in interest could not be put in the same position which they might have occupied under the wills of their respective testators, and in the distribution of the several estates, had the purchaser been “ready, desirous, prompt and eager” to perform the contract and assert his rights. The title and the interests of the claimants are complicated, and a specific performance would lead to a great perplexity and inconvenience, which would have been avoided by a prompt assertion and prosecution of the claim to a specific performance by the purchaser.

The property has greatly changed in value if not in condition, and the title has, by divers conveyances and deyises, passed into other hands, and the estates and interests of the owners are complicated so that a specific performance cannot be awarded without great danger of doing injustice. In other words, the situation of the parties and the condition and value of the property have so greatly changed during the time that elapsed between the making of the contract and the bringing of the action, that it is not a case for a specific

Opinion of the Court, per CHURCH, Ch. J.

performance within the rules governing courts of equity in administering this branch of their jurisdiction.

The granting or withholding specific performance is within the discretion of the court, and it will not be granted when it would be against, conscience and justice to do so. (Story Eq. Jur., SS 161, 742, 776 and cases cited ; Seymour v. Delancey, 6 J. C. R., 222; King v. Ilamilton, 4 Peters, 311.) The statute of limitations, by which an action for equitable relief is absolutely barred by the lapse of time, does not affect the general doctrines of equity or the principles upon which relief is granted in particular cases, or a particular class of cases.

The time within which actions may be brought for specific performance of contracts has not been extended by implication by the statutes prescribing a time within which the action must in all cases be brought. The question still remains, and must be decided in each action, although brought within the statutory limit as to time, whether under the peculiar circumstances equity and good conscience require that the contract shall be specifically performed or whether the party should be left to his remedy at law for the non-performance.

We do not understand the remarks of the learned judge, in Leaird v. Smith ( 44 N. Y., 618), as in conflict with this view.

In that case the delay was fully excused, and the remark referred to was casually made and merely to the effect that slumbering upon their respective rights by the contracting parties would terminate the contract only by such an efflux of time as would create a bar by the statute of limitations. This was literally true; the contract would not be terminated, but it does not follow, and it is not intended to be suggested, that because the contract was in force, it might in all cases be enforced and specifically performed in equity.

If specific performance were a strict legal right it would be otherwise. The plaintiffs, by their own showing, have not made a case for the equitable relief claimed; but passing this question without further consideration, the statute of limitations interposes an insuperable bar to the action.

Opinion of the Court, per CHURCH, Ch. J.

The breach of the contract and the cause of action resulting from such breach were complete on the first of May, 1852, when the purchaser tendered performance on his part and demanded performance on the part of the seller, and the latter refused.

It is not denied that from that time there was a perfect cause of action at law for the recovery of damages, and that the statute then commenced running against that cause of action, but it is sought to distinguish the equitable action for the conveyance of the property from the legal action, upon the ground that the seller was not then capable of fully performing the contract by giving a perfect title to the property, and that the title he could have given would have been subject to the contingent right of dower of his wife, then living, and who survived him many years. The cause of action accrued whenever the purchaser could have filed a bill for the relief sought in this action. (Bruce v. Tilson, 25 N. Y., 194.) The relief sought is a specific performance of the contract, and . the purchaser was entitled to that on the first day of May, 1852; and that the seller could not then give a perfect title did not affect the cause of action or the character or extent of the relief which the court would grant, but, in case the disability continued, would merely have operated to modify the form of the decree, by substituting, in part compensation or indemnity for a full performance in specie, the title granted with the compensation or indemnity for the defect being the equivalent of a full specific performance.

The seller could not have compelled the purchaser to accept such defective title with indemnity for the incumbrance, but the latter had an option to accept it or rely upon his action for damages. He could have brought his action for specific performance at once, and taken judgment in such form as would have secured to him the full benefit of his contract, and the property for which he contracted. (Harsha v. Recd, 45 N. Y., 419; Woodbury v. Luddy, 14 Allen, 1 ; Davis v. Parker, id., 94; Morss v. Elmendorf, 11 Paige, 277; Knowles v. McCamly, 10 id., 342.) The title which

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