The bill in this cause is filed against the widow, heirs-at-law and administratrix of Francesco D’Amato, for the specific performance of an oral agreement for the sale of lands entered into between said Francesco D’Amato in his lifetime, as vendor, and the complainant, as vendee, for the consideration of $800.
The agreement was discussed on August 27th, 1905, and the terms settled upon. On the following day the vendee paid the
The balance of the purchase price was paid by two checks of $300 each, dated March 22d and 23d, 1906, respectively, drawn by the complainant to the order of D’Amato, delivered to him and actually paid by the bank upon which, they were drawn, and the delivery of a horse by the. complainant to D’Amato at the agreed price of $100.
The complainant from time to time asked D’Amato to give 'him a deed, but D’Amato explained, first, that he would do so when he discharged a mortgage covering the premises, and later, when about to discharge it and execute another which, would cover other property, he said he would give the deed after canceling the existing mortgage. Again, when asked for a deed, he said by mistake he had executed the new mortgage covering the premises, in question and other property; and thus the matter rested until after D’Amato’s death, on December 26th, 1913.
The parties were close personal friends, and as D’Amato had his money and complainant had the land, evidently they considered that the mere delivery of the deed could wait until D’Amato procured a release of the mortgage.
The contract has been clearly, definitely and unequivocally proven, and, having been performed by the complainant, this court has power to decree specific performance, even though the contract be oral. Wharton v. Stoutenburgh, 35 N. J. Eq. 266; Clement v. Young & McShea Amusement Co., 69 N. J. Eq. 347; 1 Pom. Eq. Jur. § 103.
The defendants also claim that the decree should be in their favor because of the laches of the complainant in failing to obtain a deed or bring this suit during the lifetime of Francesco, who was familiar with the whole transaction. I do not agree with the defendants in this claim. The undisputed evidence, received without objection, clearly proves, first, full performance by the complainant; second, the entry into possession of the lands with
The defendants also assert an estoppel against the complainant under the following state of facts: The administratrix offered a number of lots for sale, including the premises in question. D'Elissa, they say, stood by without protest, and heard the premises struck off to Philip Tumulty for $2,300, who paid a deposit of $230. There is no evidence, however, that the sale has been confirmed in the orphans court and a deed delivered. Nothing in this suit can affect any right which Mr. Tumulty maj have, he not being a partj^ hereto. The estoppel, if it rises at all, must be between tire parties to this suit; and it is admitted that prior to the sale a question arose between the complainant and defendants as to the ownership' of the property; that D'Elissa asserted his claim, and there was an understanding between counsel that a bill should be filed to settle the dispute. Under such a state of facts I fail to see upon what theory the defendants can claim the benefit of an estoppel in their favor against the complainant. As to the wife, she did not join in the agreement and was not a party to it, .and the decree should not go against her, individually, directing her to convey her dower. As the contract was fully performed, and there is no purchase-money to be paid to the administratrix, the bill will be dismissed as against her, individually, and as administratrix.
I will therefore advise a decree directing the heirs-at-law to specifically perform.