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Statement of case.

447; Swinburne v. Same, 28 N. Y., 572; Penman v. Slooum, 41 N. Y., 53; Diefendorf v. Spraker, 10 N. Y., 246; Seymour v. Freer, 8 Wallace R., 202, 211; Lobdell v. Same, 32 How., 1; S. C., 33 How., 347 [Court of Appeals]; Parkhurst v. Cortland [Court of Errors], 14 John. R., 15, p. 32; Johnson v. Hathorn, 2 Keys, see p. 485; Smith v. Lippincott, 49 Barb., 398; Code, § 275.) The alleged sale did not change the rights of the parties or divest defendant of his character as trustee. (Penman v. Slocum, 41 N. Y., 53, and cases cited; Smith v. Boman, 35 N. Y., 83; Crocker v. Same, 31 id., 507; Day v. Roth, 18 id., 448; Diefendorf v. Spraker, 10 N. Y., 246; Giles v. Comstock, 4 id., 271; Seymour v. Freer, 8 Wallace R., 202; McKechine v. Sterling, 48 Barb., 330, and cases cited under following point): Defendant being a trustee could not legally purchase; and having done so, with knowledge of the contract, his position as trustee remains unchanged. (1 Story's Eq. Jur., §§ 322, 323, 311; 2 id., §§ 1264, 1261, 1262; Davone v. Fanning, 2 John. Ch., 251, 255-270, and cases cited; Gardner v. Ogden, 22 N. Y., 343-351, and cases cited; Colborn v. Morton, Court of Appeals, vol. 1, Transcript Appeals, pp. 145-158; N. Y. Central Ins. Co. v. Nat'l Fire Ins. Co., 14 N. Y., 91; Claflin v. Farmer's & Co.'s Bank, 25 N. Y., 296, bottom of page; Swinburne v. Same, 28 N. Y., 572; Hoyt v. Martense, 16 N. Y., 231, 234, bottom of page; Case v. Carroll, 35 N. Y., 385; Buffalo S. E. W. v. Sun M. Ins. Co., 17 N. Y., bottom of page 403, and top of page 404; Moore v. Moore, 1 Seld., 256; Butts v. Wood, 37 N. Y., 318, 319; Diefendorf v. Spraker, 10 N. Y., 246; Penman v. Slocum, 41 N. Y., 53; Terwilliger v. Brown, 44 N. Y., 237; Boerum v. Schenck, 41 N. Y., 183; Ryan v. Dox, 34 N. Y., 319; Foote v. Foote, 58 Barb., 529; Hawley v. Creamer, 4 Cow., 743.) The cestui que trust may revoke his assent (whenever made) to such an arrangement at any time within ten years, and the property will be declared trust property. (2 Story's Eq. Jur., § 1264, 1261, 1211; Silliman v. Tuttle, 45 Barb., 171; Davone v. Fanning, 2 Johns. Ch., 151, and cases cited

Statement of case.

Boerum v. Schenck, 41 N. Y., 183, and cases cited.) The right to avoid a trustee's purchase of the trust property passes to the heirs or legal representatives of the beneficiary. (Iddings v. Bruen, 4 Sandf. Ch., 223.) In Colborn v. Morton et al. (January Term, 1867, Court of Appeals, reported in 5 Abb., N. S., see bottom of page 325), it is held that "the cestui que trust, or those who may have succeeded to his rights, can either apply to have the sale set aside, or may affirm the sale and charge the purchaser with the actual value of the lands purchased." (McMahon, assignee, v. Allen [Court of Appeals], 3 Abb., N. S., 74.) If the trust is not closed by the alleged sale, plaintiff is entitled to specific performance upon payment of the money. (Laird v. Smith, 44 N. Y., 618; Leggett v. Edwards, 1 Hopkins Ch., 530; Masson v. Bovet, 1 Den., 69, 74; Fisher v. Conant, 3 E. D. S., 199; Mayer v. Shoemaker, 5 Barb., 319; Benson v. Tilton, 24 Barb., 494, 498; Malins v. Brown, 4 N. Y., 403, 408; Williston v. Same, 41 Barb., 635; Viele v. Troy and B. R. R., 21 id., 391; Voorhees v. Demeyer, 2 id., 38, 47; Carpenter v. Atherton, 28 How., 307, bottom of page; Losee v. Morey, 57 Barb., 651, 652; Miller v. The Mayor, etc., 53 Barb., 653; Marsh v. Blackman, 50 Barb., 329-333; Seymour v. Freer, 8 Wallace, 202; and cases cited under second and fifteenth points.) The inability of defendant, created by himself, to perform, by reason of his having conveyed one lot, is no objection if plaintiff will take subject to such inability. And plaintiff has a right to what there is. (Gilbert v. Peteler, 38 Barb., 488; Voorhees v. Demeyer, 2 id., 38, 47; Jerome v. Scudder, 2 Robt., 169-174; Westervelt v. Same, Hoffman, 37; Waters v. Travis [Court of Errors], 9 John. R., 450, and see pp. 464, 465.) Time is not the essence of a contract, unless. the parties have made it so in their contract. (Bruce v. Tilson, 25 N. Y., 197.) The alleged assumption by W. W. Young of J. B. Young's indebtedness was void under the statute of frauds. (Seaman v. Van Rensselaer, 10 Barb., 81; Staats v. Howlett, 4 Den., 559; Chaffee v. Thomas, 7 Cow., 358; Malloy v. Gillett, 23 Barb., 610; Sacket v. Palmer, 25 Barb.,

Statement of case.

179.) A party has no right to annex any condition to the performance of a contract not specially provided for in the contract. (Brown's W. F. Co. v. French, 34 How., 94; Kuhn v. Stevens, 36 How., 275-278; Thomas v. Hunt, vol. 3, p. 191, Transcript Appeals; Morris v. Whitcher, 20 N. Y., 41.) No demand was necessary to maintain suit. (Burwell v. Jackson, 5 Seld., 546, and top of p. 547; Bruce v. Tilson, 25 N. Y., 194.) A tender of performance on the part of plaintiff, excused by reason of inability, disability and refusal on the part of defendant. (Morange v. Morris [Court of Appeals], 32 How., 178, and cases cited; Stevenson v. Maxwell, 2 N. Y., top of p. 415; Bruce v. Tilson, 25 N.Y., 194.) The placing the deed in escrow, extended time of performance indefinitely, and defendant cannot take advantage of the laches of plaintiff. (Leggett v. Edwards, 1 Hop. Ch., 530.) The contract being under seal, cannot be canceled by parol. (Walker v. Duns paugh, 20 N. Y., 173; 16 N. Y., 354; 5 Seld., 183; Jackson v. Vosburgh, 7 John. R., 186; Jackson v. Cary, 16 id., 302, and top of p. 306; Brant v. Livermore, 10 id., 366; Jackson v. Kisselbrack, 10 id., 344; Haydock v. Stow, 40 N. Y., bottom of p. 369-371.) The sale as claimed by defendant was void by the statute of frauds. (R. S., part 2, chap. 7, title 1, § 6, 5th ed., vol. 3, p. 220; McGregor v. Brown, 10 N. Y., 117; Green v. Armstrong, 1 Den., 550, 553, 554; Haydock v. Stow, 40 N. Y., 363, see bottom of p. 369, also cases cited in last point; The Madison Avenue Baptist Church v. The Oliver Street Baptist Church, MSS. opinion by GRover, J., rendered last September term of this court.) Defendant having answered, plaintiff was entitled to relief in some form, the prayer of complaint being for general relief. (Code, § 275; Barlow v. Scott, 24 N. Y., 40, 45; N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y., 358–360; Marquat v. Same, 12 id., 341; Emery v. Pease, 20 id., 64; Lattin v. McCarty, 41 id., bottom of pp. 110 and 111; Armitage v. Pulver, 37 id., bottom of p. 496 and top of p. 497; 1 Story's Eq. Jur., § 311, 322; Davone v. Faning, 2 Johns. Ch., 251, 255, 270; Hawley v. Creamer, 4 Cow., see bottom of p. 744;

Statement of case.

Utter v. Stuart, 30 Barb., 20, 23; Cuff v. Dorland, 55 id., 496; Denman v. Prince, 40 id., 217-219; Whitney v. Whitney, 49 id., 323; Bennett v. Abrams, 41 id., 620, 626; Seymour v. Freer, 8 Wallace R., 202.) Defendant has not placed Young in default by tendering a deed. (Morange v. Morris [Ct. of App.], 31 How., 178; Leird v. Smith, 44 N. Y., 618; Burwell v. Jackson, 5 Seld., 546; Grant v. Jackson, 1 Seld., 247.) It was error in allowing defendant to give evidence of a contract not pleaded in his answer. (Kelsey v. Weston, 2 Comst., 506, and cases cited; Ferguson v. Same, 2 id., 361, 362; McKyring v. Bull, 16 N. Y., 297, 309, middle of page; Codd v. Rathbone, 19 id., 39, middle of page; Brazill v. Isham, 12 id., 17, middle of page; Field v. The Mayor, etc., 2 Seld., 179; Carter v. Koezley, 14 Abb., 147; Code, § 149, subd. 2.)

G. M. Spier for respondent. Specific performance will not be decreed where there is a material variation between the terms of the contract as alleged and as proven. (Harris v. Knickerbocker, 5 Wend., 638; Phillips v. Thompson, 1 J. Ch., 146.) Nor will it be decreed in favor of one who has failed to perform and where great changes in title and value have occurred. (Brashier v. Gratz, 6 Wheat., 528; Mc Williams v. Long, 32 Barb., 197.) The party seeking this species of relief must not have been guilty of negligence; but must show that he has been ready, desirous, prompt and eager. (2 Story Eq. Jur., § 776; Benedict v. Lynch, 1 J. Ch. R., 370; 1 Sugden on Vendors, 298, 410.) An abandonment of the contract, even by parol, precludes an action for specific performance. (Willard's Eq., 289; Baldwin v. Salter, 8 Paige, 473.) Plaintiff having never given notice of his assignment, and having delayed five years, is not entitled to specific performance. (Crowell v. Watts, 2 Hall & Twill's R., 224; Reily v. Walsh, 11 Irish R., 22; Clegg v. Edmonson, 8 De Gex, McNaugh ton & Gardon R., 787.) The court will never decree a specific performance unless the case of the plaintiff is perfectly clear from circumvention and deceit. (Sugden on Vendors, 211, 14th ed.; Davis v. Symonds, 1 Cox, 407.)

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Opinion of the Court, per GROVER, J.

GROVER, J. The plaintiff not having given notice to the defendant of the assignment of the contract by Young to him, and the defendant having no knowledge thereof, plaintiff is bound by the subsequent acts and dealings between the defendant and Young in relation thereto. The judge finds, in effect, that no such contract as is alleged in the complaint was ever made between Young and the defendant. This finding is sustained by the positive testimony of the defendant, which was corroborated by the testimony of the witness, Guernsey, and by various circumstances proved by other evidence. In his third finding, the judge says there are errors of moment in the alleged copy of the contract, introduced in evidence by the plaintiff, and points out two; one very material, and prejudicial to the defendant; the other comparatively slight, and favorable to him. The fourth finding expressly says, in effect, that the contract sued on (a copy of which was introduced by the plaintiff) was not the contract made between Young and the defendant. In the fifth, sixth and seventh findings is a statement of the negotiations of Young and the defendant, resulting in a contract, pursuant to which Young conveyed his interest in the Doane property to the defendant, and the latter executed a deed to the former of the lands in question and certain specified mortgages thereon, were executed by Young to the defendant; all of which were placed in the hands of a third person in escrow, to be delivered to the parties respectively upon payment by Young to the defendant of about $10,400. These findings are in accordance with the testimony of the defendant and of the witness Spier, and show that credit was given to this testimony, and not to that of the witnesses introduced by the plaintiff. These facts must be regarded as true by this court, having been found in accordance with testimony tending to prove them; as no power is given to this court to pass upon the weight of conflicting evidence. The General Term had such power, and it was its duty to examine the question; and, if the result was a conviction that the finding was not in accordance with truth, to reverse the

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