34 N.J. Eq. 496 | New York Court of Chancery | 1881
The object of this suit is to obtain the benefit of a certain agreement made between the complainant and Thomas Anderson, one of the defendants, by which Anderson agreed to make and execute to the complainant a mortgage on the premises mentioned and described in the bill, to secure the payment of the
It is fully proved that, by a written agreement dated February 22d, 1809, Dean agreed to sell and convey to Anderson a certain estate situate at Bensalem, in the county of Bucks, and state of Pennsylvania, for the sum of £1,500. £375 thereof were to have been paid upon the 5th day of April then next ensuing, when a deed was to have been executed to Anderson, and the remaining part of the purchase-money secured by a mortgage on the premises; that Anderson, after having paid a part of the £375, made a proposal to one William Jackson to exchange with him the estate so agreed for at Bensalem, for a certain ferry, ferry-house and lot of land at Trenton, where Jackson then lived; and that soon after, Jackson, Dean and Anderson had a meeting on the subject, when it was agreed that Dean should convey the Bensalem estate to Jackson, and that Jackson should convey his estate at Trenton to Anderson ; that Anderson should give his bond to the complainant, with a mortgage on the ferry property, to secure the payment of £700, part of the consideration-money, which Anderson had agreed to pay for the Bensalem property, and that Jackson should secure to the complainant the payment of the further sum of £518 15s. on the property to be conveyed to him; that in.pursuance of this last agreement, Deau and wife, by their deed, dated August 21st, 1809, conveyed to Jackson the property at Bensalem, and Jackson and wife, by their deed, granted and conveyed the ferry property to Anderson, which deed Anderson immediately
Thus far, there is no dispute between the parties as to facts. But it is contended on the part of the defendants, that Anderson’s agreement to execute a mortgage on the ferry property at Trenton created no specific lien on that property, but only a legal obligation personally binding on him, and for the breach of which the complainant can have no remedy but an action at law for damages. When the subject matter of a contract is real ■estate, and a sum in damages, which is the only remedy afforded by a court of law, is not an adequate remedy for the non-performance of such contract, a court of chancery will grant relief specifically (3 Aik. 387), but in general it will not entertain a bill for the specific performance of contracts which relate to chattels or articles of merchandise, but leaves the injured party to his remedy at law, which is much more expeditious. An
It appears from the evidence of William Jackson that when he executed the deed to Anderson, it was delivered to him and that he immediately delivered it to Dean. It does not appear that anything was said on the delivery of the deed by Anderson .to Dean. If the complainant had charged in his bill that the deed was deposited with him as a security for the £700, and upon an agreement that he should hold it until the execution of the mortgage to him by Anderson, according to some modern decisions in the books, the evidence would be sufficient to make out .a ease of an equitable mortgage or lien by the deposit of the title deeds, notwithstanding the statute of frauds. Birch v. Ellames and Gorst, 2 Anstruther 427; Hiern v. Mill, 13 Ves. 114; 1 Madd. Ch. 428. But as it is not so charged in the bill, the complainant cannot be relieved on this ground. I am, however, decidedly of the opinion that the acts done in performance of .the agreement take the case out of the statute.
“ I take it not to have been ever established that a plaintiff is bound to prove all the allegations of his bill with so much strictness and precision as a plaintiff at law is obliged to prove his declarations. It is sufficient here if the plaintiff proves the substance of his bill.” '. ,
He then goes on to define that evidence of an agreement of a different import or tendency would not support the bill, but that evidence of a written agreement will support the allegation of a parol agreement, or evidence of a parol agreement, the allegation of a written agreement.
I shall now proceed to consider the case as it respects Ross and Burrows. It is contended, on their part, that they are bona fide purchasers for valuable consideration, without notice of the complainant’s equitable lien, and that therefore equity will not afford the complainant any assistance against them. In all cases where a party means to defend himself on the ground of being a bona fide purchaser, he must deny notice before the execution of the deed to him, and previous to the payment of the consideration-money. Mitf. Eq. Pl. 216; Coop. Eq. Pl. 282. And he must deny notice, though it be not charged in the bill. 1 Vern. 197; 3 P. Wms. 214 n. (F); 1 Johns. Ch. 302, 575; 2 Madd. Ch. 255; 2 Atk. 495.
In this case, the defendants’ denial of notice is altogether evasive and unsatisfactory. Instead of plainly and distinctly denying notice of the agreement for a mortgage on the premises in question previous to the execution of the conveyance, and which was the most material and essential matter to be denied with precision, they only deny that at the time of their purchase, or at any time before, they had notice that the deed from Jack.son to Anderson had been delivered to the complainant to be kept as an escrow until the bonds and mortgage mentioned in the bill should be executed, or that they knew that the deed had been obtained by Anderson out of the hands of the complainant by fraud, or that it had been in the possession of the complainant, or that they knew, at the time of their purchase, or at any
But it is not necessary to decide the cause on -the insufficiency of the answer on this point, for the evidence I consider sufficient to fix notice on Ross and Burrows before the execution of the deed to them, and previous to the payment of the consideration-money.
Abram Chapman, a witness for the complainant, testifies that, on the 30th of August, 1809, he, as an attorney-at-law, brought a suit for Dean against Anderson, in the common pleas of Bucks county; that, some time after, Burrows, who was under-sheriff in that county, and had arrested Anderson at Dean’s suit, applied to witness to know whether he, Burrows, could with safety take Anderson to Burlington ; that at this time Dean, Burrows and witness conversed together on the subject of taking Anderson to Burlington to execute a' mortgage on the ferry property to Dean; that the next day Burrows told witness that they had been to Burlington and applied to David Griggs to •draw the mortgage, who declined doing it, as they could not furnish him with the courses and distances; that these conversations took place about the first or second week in September, 1809. This witness is strongly corroborated by the testimony of Dr. Amos Griggs, who says that Dean, Anderson and Burrows called on him in September, 1809, to fill up a mortgage, which was not done, because they had not the original papers ; that Dean said Anderson liad been taken out of jail for the express purpose of executing a mortgage to him. Here we have evidence of distinct notice to Burrows, before the execution of the conveyance, of Dean’s demand against Anderson ; that Anderson was fined and imprisoned by Dean for not complying with his contract, and that Anderson was about giving a mortgage on the ferry property to secure the money he owed Dean. This notice was at least sufficient to put them on inquiry before they purchased the property ; and whatever is sufficient to put the party upon inquiry, is good notice in equity. 1 Vern. 363; 1 Atk. 490; Ambler 313; 2 Fonb. Eq. 155 n. (M).
It is further proved by William Jackson, that when Boss applied to him to sign a lease acknowledging that he held the premises under Boss and Burrows, the witness at first objected to signing-the lease, and said that he expected censure from Dean if he signed it; that Boss told the witness that he need not be afraid to sign it; that he or they (the witness does not recollect which) would satisfy'Dean. Was this the language and conduct of a man who had purchased without notice of the complainant’s equity? Certainly not. If he had been a bona fide purchaser,, without notice, he would have expressed some indignation against Anderson, or some surprise at finding a claim on the estate that he was ignorant of at tlie time of his purchase, and made some inquiry respecting it; but, instead of doing this, his language is that of a man who knew of the claim, and expected to be answerable to Dean for it. Margaret Jackson, in her examination, says that, not long after, Anderson was there, and told her husband that he did not mean to execute the mortgage. Boss-came and conversed with her husband respecting the business ■ that he was several times there, and that Burrows was there also two or three times; that she remembers to have heard Boss talk with her husband about Dean’s claim, but does not recollect what he said on the subject, but that it appeared to her that he knew all about it; that the first time Boss came to her husband, was about two or three weeks after Anderson had been there, and said that he did not intend to sign the mortgage. James Jackson and Lydia Jackson, in their examination, say that, at the time of signing the lease, Boss said he intended to pay Dean his ’money. As these two witnesses were quite young when the-transaction of which they testify took place, they are not to be relied on for the exact expression made use of, but there is no-doubt, from all the evidence as to the conversations between. Boss and Jackson, that Dean’s claim was talked of, and that
Besides the evidence which I have stated, there are several circumstances extremely unfavorable to the fairness of the purchase of Ross and Burrows. They purchased from a man in jail for the non-performance of this very contract, and immediately after became his bail. They purchased for the consideration of £400, which appears from the evidence not to have been more than the one-half of the value of the property, and in addition to those circumstances the haste which they manifested to obtain a lease from Jackson recognizing their title, cannot but excite a strong suspicion that all was not fair.
But if a doubt remains on the question whether Ross and Burrows had notice before the execution of the conveyance to them, there cannot be any that they had notice before the payment of the purchase-money, for it is not only fully proved by the evidence in the cause that they had such notice, but it is not even denied in the answer, and they must therefore be considered as holding the premises subject to that equitable encumbrance. A purchaser with notice is liable to the same equity, and in the same manner, and to the same extent, as the person was of whom he purchased. Sugden 484; 2 Eq. Cas. Ab. 32 pl. 43, and n.; 2 Ves. jun. 439.
But it has been contended, on the part of the defendants, that if Ross and Burrows obtained their deed before notice of this encumbrance, although they received notice before the payment of the purchase-money, the estate is no further liable than to the amount of the money they were to pay, without any regard to the actual value of the estate, and the case of Frost v. Beekman, 1 Johns. Ch. 288, has been cited in support of this position. In that case, a mortgage was given to secure
From a careful examination of the evidence, I am of the-opinion that Ross and Burrows had notice of the complainant’s equitable lien before the execution of the conveyance to them,, and previous to the payment of the purchase-money, and therefore decree:
1. That the ferry, ferry-house and land, situate at Trento-n, and conveyed by Jackson to Anderson, are subject to and chargeable with the amount due the complainant from Anderson, on the sale of the Bensalem property, not exceeding the sum of £700, with interest from the time of the agreement for a mortgage on the said ferry property.
2. That it be referred to a master to ascertain and report the amount due the complainant from Anderson as aforesaid at the time of making the agreement for a mortgage on the said ferry property, and at the time of making his report, and that if the sum due at the time of making the said agreement exceeds £700, that the master also report the amount of interest" due upon £700 from that time to the time of making his réport.
3. And that all further questions be in the meantime reserved.