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Opinion of the Court, per RAPALLO, J.

the tax lease, dated July 6, 1856, from the city of Brooklyn, for 1,000 years, and leased the premises individually to Mary Linden, as lessee under that lease.

It does not appear that Benjamin Andrews claimed any title to the premises until he entered under the tax lease. What he terms a possession prior to that time, was in fact but an agency for the collection of rents from the tenants in possession. The fact that before he entered, claiming any title in himself, he had acted as agent for parties who were bound by the judgment against Jackson, can hardly subject to the effect of that judgment his subsequent entry under an independent claim of title. But whatever may have been the effect of such prior agency, it cannot affect the judgment appealed from, as it is not found by the judge. It is well settled in this court, that we will not look into the evidence for facts to overthrow the judgment. All facts intended to be relied upon to show that the conclusions of law are erroneous, must be specified in the findings, or the court or referee must have been requested to find them, and an exception taken to his refusal. The only claim of title under which the findings show that the defendant Andrews originally entered, is that under the lease of July, 1856. The evidence sustains the finding, that he did enter under that lease, and consequently the plaintiff was bound to prove his title in order to overcome the effect of that possession and put the defendants to proof of the validity of the tax lease under which he claims to have entered. The judgment against Jackson was not evidence of title in the plaintiff for this purpose. It was no evidence against any one other than the defendant therein, or persons claiming under him. (Ainslie v. The Mayor, etc., 1 Barb., 169; Campbell v. Hall, 16 N. Y., 579.)

On this ground, I think that the judgment should be affirmed, with costs.

All concur except PECKHAM, J., not voting.
Judgment affirmed.

Statement of case.

49 485

CHRISTIAN S. DELAVAN, Respondent, v. FLEMING DUNCAN, 115 542

Appellant.

49 485 120 257

A contract to sell and convey land can only be performed by giving a

deed that will vest in the grantee an indefeasible title. Where, ander such a contract, the vendee is prepared to pay the purchase

money, but in consequence of the title being incumbered the vondor is unable to perform, a tender of the purchase-money is not necessary in

order to preserve the vendee's rights under the contract. Although relief will sometimes be granted by a court of equity to one who

has not complied with the strict terms of his contract, yet it will only be done in cases where the party seeking it makes out a case free from all doubt, shows that the relief he asks is under all the circumstances equitable, and accounts in a reasonable manner for his delay and

apparent omission of duty. Defendant contracted to sell and convey certain premises. At the time fixed

for performance he was unable to give an unincumbered title. No part

of the purchase-money was paid, and defendant remained in possession. Plaintiff brought action for specific performance three years and a half

after the time fixed for performance, without giving any notice meantime of his intent to insist upon the execution of the contract and without excusing the delay. Held (RAPALLO and PECKHAM, JJ., dissenting) that plaintiff was not entitled to the relief sought.

(Argued April 23, 1872 ; decided May 28, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiff entered upon the decision of the court at Special Term.

The action was brought for the specific performance of a contract. The substance of the contract and the facts are set forth in the opinion.

Samuel Hand for the appellant. The agreement was simply " to sell," and defendant was not bound to give a warranty deed, or one with covenant against incumbrances. (Ketcham v. Swab, 13 J. R., 359; Van Eps v. Corporation of Schenectady, 12 J. R., 436; Nicon v. Hyserott, 5 id., 58; Gazeley v. Price, 16 Johns., 267; Parker v. Parmelee, 20 id., 130.)

Opinion of the Court, per GROVER, J.

Horace Andrews for the respondent.

Defendant was required by the contract to convey an unincumbered title. (Smith v. Haynes, 9 Greenl., 128; Throughton v. Throughton, 1 Ves., Sr., 86; Newman v. Rogers, 4 Bro. Ch., 394; 2 Sugden, Vend., 419; Johnson v. Johnson, 3 Bos. & Pull., 162; Crippes v. Reed, 6 Term R., 162; Roffey v. Shallcross, 4 Madd., 122 ; Judson v. Wass, 11 Johns., 525; Dalbey v. Pullen, 3 Simons, 29; Ward v. Trathen, 14 id., 82; Rawle on Covenants for Title, 458; Burwell v. Jackson, 9 N. Y., 535; Fletcher v. B tton, 4 Comst., 396; Hill v. Ressegien, 17 Barb., 162, 164; Earl v. Campbell, 14 How., 330 ; Rigney v. Cowles, 6 Bosw., 479.) A tender of performance need not be made where it would be wholly nugatory. (Clark v. Crandall, 27 Barb., 73; North v. Pepper, 21 Wend., 636; Cornwell v. Haight, 21 N. Y., 462; Curry v. Smith, 2 id. [2 Comst.], 60 ; Skinner v. Tinker, 34 Barb., 333; Crist v. Armour, id., 378; Main v. King, 8 Barb., 537; Morange v. Morris, 32 How., 178; Foot v. West, 1 Den., 544.) Plaintiff is entitled to specific performance. (Story Eq. Jur., 105; Rawle on Cov., 430; Worrall v. Munn, 38 N. Y., 137.)

GROVER, J. The contract of the appellant to sell to the respondent the lands therein described required the former to convey the same to the latter as specified. This is conceded by the counsel of the appellant; but he insists that the execution and delivery by the appellant of a deed, that would invest the respondent with such title as the appellant had, would be a performance of the obligation although such title was not perfect or free from incumbrances. Van Eps v. The Corporation of Schenectady (12 Johns., 436); Gazley v. Price (16 id., 267), and Parker v. Parmele (20 id., 130), are cited in support of this position. In the case first cited, the only question having any analogy to the one now under consideration was whether such a contract bound the vendor to give a deed with covenants of warranty, and against incumbrances or other personal covenants. It was held that it did not; but the question whether the deed must not convey an

Opinion of the Court, per GROVER, J.

indefeasible title was not raised or considered. In Gazley v. Price it was held that a covenant to give a good and sufficient deed of lands was satisfied by the giving of a deed, properly executed in due form, although an indefeasible title was not thereby conveyed. In Parker v. Parmele a like doctrine was held. But these cases have been overruled by this court in Burwell v. Jackson (5 Selden, 536). In this case it was distinctly held that a covenant to give a good and sufficient conveyance of land could be performed only by giving a deed that would vest in the grantee an unincumbered title to the premises. An examination of the able opinion in this case shows, upon principle and authority, that such is the law. It was so determined; and any further discussion of the question would be superfluous. It may be remarked that the latter case does not overrule the former as to the kind of deed that must be given, but as to the title that must be conveyed. A grant without covenants of warranty would have been a performance, in the present case, provided an indefeasible title had been thereby conveyed. It follows that the deed offered by the appellant to the plaintiff was not a performance of the covenant, and that the plaintiff was not bound to accept it, for the reason that the land was subject to the lien of judgments against the defendant. It appears that the plaintiff was prepared to pay the purchase-money upon the delivery of a deed vesting him with an unincumbered title, but that the defendant had not power to give such a deed. The plaintiff, under these circumstances, was not bound to make a tender of the money. The right of the plaintiff to a specific performance of the contract was established, unless lost by his subsequent laches. The contract was made November 6th, 1862, for the sale of a house and lot, in the city of New York, for the price of $5,500, to be paid on the fifteenth of the same month, or as soon thereafter as the title could be searched; not to exceed thirty days. The judge finds as facts, that early in December, 1862, about twenty days after making the agreement, the title to the property having been searched, the plaintiff said

Opinion of the Court, per GROVER, J.

to the defendant that there were judgments recorded against him, describing such judgments, and requested him to have said liens removed, and stated that he was then ready to fulfill his agreement; that the defendant said he could not or would not remove the liens. The action was not commenced until August, 1866. The inquiry is whether, upon these facts, the plaintiff was entitled to judgment for specific performance; and if not, whether the evidence authorized the finding of such additional facts as would entitle him to such judgment. Fry on Specific Performance ($ 730), a work of acknowledged authority, says: “The Court of Chancery was, at one time, inclined to neglect all consideration of time in the specific performance of contracts for sale, not only as an original ingredient in them, but as affecting them by way of laches. But it is now clearly established that the delay of either party in not performing its terms on his part, or in not prosecuting his right to the interference of the court by filing a bill, or lastly, in not diligently prosecuting his suit when instituted, may constitute such laches as will disentitle him to the aid of the court, and so amount, for the purpose of specific performance, to an abandonment, on his part, of the contract." Section 731 refers to the cases in which this doctrine was established. Section 732 says: “The doctrine of the court thus established, therefore, is that laches on the part of the plaintiff, either in executing his part of the contract or in applying to the court, will debar him from relief.” “A party cannot call upon a court of equity for specific performance,” said Lord ALVANLEY, “unless he has shown himself ready, desirous, prompt and eager;" or, to use the language of Lord CRANWORTH, “specific performance is relief which this court will not give, unless in cases where the parties seeking it come as promptly as the nature of the case will permit.” The cases cited by the author fully sustain his conclusions. (See, also, Marquis of Hertford v. Boore, 5 Vesey, 719, and cases cited, note b, 720; Story's Equity, SS 771, following to 781.) In Taylor v. Longworth (14 Peters, 172) Judge STORY, in giving the opinion of the court, at p. 175, says: “Relief

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