205 Misc. 896 | N.Y. Sup. Ct. | 1954
This is an equity action for specific performance of a contract to purchase real estate located in the town of Phelps, Ontario County, New York. The contract consisting of a purchase offer and acceptance, dated July 28, 1952, is the basis for plaintiffs’ action against the defendants. Plaintiff Jesse R. Goodman, Jr. obtained title to the premises described in the contract from Raymond J. Bennett, Commissioner of Public Welfare of Ontario County, by quitclaim deed dated July 19, 1951, and thereafter by warranty
By the terms of the contract the defendants offered to purchase the lands and improvements owned by the plaintiffs for the sum of $4,500 of which $500 was to be paid on acceptance of the offer and the balance on date of transfer. The offer was accepted and plaintiffs deposited $500 in cash with the broker.
The defendants by their answer, after denying that plaintiffs are able to perform under the terms of the purchase offer and acceptance, set forth the following affirmative defenses: 1. That there are defects and a break in the chain of title as appears at Abstracts 2, 3, and 8 of the Abstract of Title. 2. That the alleged public sale by which the Commissioner of Public Welfare conveyed the lands to the plaintiff Jesse B. Goodman, Jr. was not in fact a “ public sale ” as provided by sections 106 and 223 of the Social Welfare Law. 3. That failure of the Commissioner of Public Welfare to properly file in the Ontario County Clerk’s Office documents regarding the so-called public sale constitutes a defective record title justifying the defendants in refusing to accept the same. 4. That the deeds from predecessors in title to the Commissioner of Public Welfare having been given as securities were in effect mortgages rather than true conveyances of title. 5. That whereas the defendants were seeking one acre of land, the contract described the lands as being three fourths of an acre, while the plaintiffs as a matter of fact own only one half an acre and are therefore unable to perform according to the terms of the contract.
I find that the above affirmative defenses numbered “ 3 ” and “ 4 ” are without merit. I find no law requiring the public welfare official to file in the County Clerk’s office proof of the publication of the notice of sale, record of bids received, approval of the State Department of Social- Welfare and other documents pertaining to the sale. The deed from the Commissioner of Public Welfare to Jesse B. Goodman, Jr., one of the plaintiffs in this case, enumerates all such documents and states that they are on file in his office and are retained therein as permanent records. The affirmative defense above numbered “ 4 ” was not considered at the trial, or by counsel in his brief.
Defendants allege that the sale of the premises to plaintiff John B. Goodman, Jr. by the Commissioner of Public Welfare upon sealed bids was invalid as not being by “ public sale ” as
Contending that a sale by sealed bids does not constitute a public sale as provided by subdivision 3 of section 106 of the Social Welfare Law the defendants rely principally upon judicial decisions rendered in several sister States. (See Offredi v. Huhla, 135 Conn. 20, 4 A. L. R. 2d 572, and “ What constitutes a ‘ public sale ’ ”, 4 A. L. R. 2d 575.) Nevertheless, supported by a ruling' of the Attorney-General that the term “ public sale ” as used in said subdivision 3 included both sales by oral bidding at public auction and by receiving sealed bids, made soon after subdivision 3 became effective (1947 Atty. Gen. 255), the public welfare officials in many counties of New York adopted the method of sales by sealed bids while others have used the public auction method by oral bidding, and still others have used both methods. Plaintiffs’ attorney wrote the public welfare officials of twenty-eight counties having relatively the same population as Ontario County inquiring as to which method of sale was used in their respective counties. Without objection their replies were received in evidence to show the practice. It appears that sixteen of these counties use the public auction method, eight the sealed bids, and four use both methods. It therefore seems reasonable to assume that many of the remaining thirty-four counties of the State are using the sealed bid method, or perhaps both methods.
It appears that the Legislature when intending that a sale should be conducted by receiving oral bids have used the term “ public auction ” as evidenced by sections 120 and 151 of the Tax Law providing for the sale of real property by State and county officials in the collection of taxes, and also by section 986 of the Civil Practice Act providing for the sale of real property made in pursuance of a judgment in an action affecting the title to real property. The term “ public sale ” instead of “ public auction ” is used in said subdivision 3 of section 106 of the Social Welfare Law thereby indicating some distinguishing intent on the part of the Legislature. The phrase
As an affirmative defense defendants allege that the amount of land to be conveyed was misrepresented to them when they
The failure of the plaintiffs to act with reasonable dispatch with reference to the alleged defects in the title warrants consideration. The contract between the parties was executed July 28, 1952, and provided that the sale should be completed on or before August 9,1952. Soon after August 12th, plaintiffs caused to be delivered to defendants’ present attorney an abstract of title. He returned the same to plaintiffs’ attorney with a letter dated August 29th, stating therein that in his opinion the title offered was not a good and marketable title for the reason that ‘ ‘ there are some defects which undoubtedly could be corrected, such as appears at abstract No. 3 ”, but that his most serious objection was based on the fact that at the time the premises were sold to plaintiff Jesse R. Goodman, Jr. by the Commissioner of Public Welfare of Ontario County, as appears at Abstract No. 8, such sale was made upon sealed bids instead of oral bids at public auction. The letter further advised that the defendants refused to accept the offered title for these reasons and demanded a return of the down payment of $500. Reference to Abstract No. 3 involved the question as to who might have been the heirs of a former owner of the premises, there being no record in the Surrogate’s office pertaining to her estate. By letter dated September 4, 1952, plaintiffs’ attorney advised defendants ’ attorney that if defendants would not accept the title the plaintiffs would take legal action. During the ensuing six months no move was made by plaintiffs either by way of taking legal action or attempting to cure the defects in the title, except that plaintiffs’ attorney suggested that his clients might arrange to have the title insured. This offer was not acceptable to the defendants. On March 18,1953, plaintiffs ’ attorney wrote defendants that they still stood ready to perform the contract and deliver a warranty deed, and “ stand ready to do whatever is necessary to complete the sale ”, and that an action in specific performance would be commenced upon defendants’ failure to accept title to the property. Five days later defendants’ attorney replied to that letter stating that the defendants refuse “ to accept anything but a marketable title ” to the premises.
The defendants, at the time of signing the contract with plaintiffs, had sold their farm and were required to give possession to the purchaser. They were confronted with the necessity of purchasing another property as a home — not as a speculation. It is true that five days after their attorney had written plaintiffs’ attorney rejecting the offered title to the premises here involved the defendants purchased another property where they now reside. Under ordinary circumstances plaintiffs of course would be allowed more than five days in which to perfect their title. But an unusual situation obtained in this instance. The defendants were not relying solely upon the advice of their present attorney. They had first submitted the abstract of title to another attorney who admittedly is an authority on real estate matters. He advised that plaintiffs did not have a good marketable title because of the question as to whether a former sale of the property by the public welfare official under sealed bids constituted a ‘ ‘ public sale ’ ’ as required by statute, and in a letter of August 18, 1952, to plaintiffs’ present attorney named other
Under the facts and circumstances disclosed by the record in this case equity will not compel- the defendants to perform under their contract with the plaintiffs. Defendants are entitled to judgment dismissing the complaint and directing that plaintiffs pay to defendants $500, representing their down payment on the contract, with interest thereon from July 28, 1952, and the further sum of $550 as and for their counsel fees, together with the costs and disbursements of this action.
Findings and proposed judgment may be submitted accordingly.