25 Me. 225 | Me. | 1845
The opinion of the Court was drawn up by
By this bill the plaintiff seeks the specific performance of a contract for the conveyance of real estate, made on February 15, 1841, between one of the defendants, Josiah Little of Winthrop, and Asa Bigelow, Jr. That contract provided for a conveyance of one fourth part of the Winthrop factory upon certain terms; and contained stipulations respecting the conveyance of parts of it to the two other
The plaintiff’s title is derived from a seizure and sale of the right of Bigelow to a conveyance of a fourth part of the factory under that contract, by virtue of an execution issued on a judgment recovered by the members of the firm of Halstead, Hains & Co. against Bigelów. The seizure on the execution was made on May 6, 1843, and the sale on June 24, following. The plaintiff became the purchaser, and received a deed from the officer conveying to him the right, which Bigelow had on May 6, 1843, to a conveyance of one fourth part of the factory.
The seizure and sale upon the execution were authorized by statute, c. 94, $ 50, as amended; and in c. 117, $ 50, it is provided, that the purchaser should have the same remedy to compel a conveyance, as mortgagors have to compel mortgagees to convey to them, on performance or offer to perform the condition of a mortgage.
The first inquiry presented is, what right had Bigelow to a conveyance of one fourth part of the factory on May 6, 1843. Little had made a contract on December 19, 1840, with Benjamin Sewall, for the purchase of the Winthrop Factory; and the terms, upon which it was to be conveyed, had in some respects been varied by a subsequent agreement, made on January 1, 1841. The contract between Bigelow and Little, made on February 15, 1841, referred to it, and contained the following clause. “The said Little on his part agrees to make the conveyance of said quarter part to said Bigelow, upon said Little’s receiving the conveyance from said Sewall; and the said Bigelow is to make the payments for his proportion of said property in the same manner as stipulated by said Little in said agreement above referred to, and enter into possession of the premises and receive his proportion of the profits and rents of said property, and pay his proportion of
For the plaintiff it is contended, that the defendants have
A court of justice, without other proof, would not be authorized to make such an application of it. It is not perceived, that the plaintiff can have even an equitable claim to have it so applied, unless he would insist, as the defendants do, that all the stipulations contained in the contract had reference to the conveyance of the real estate. And in that case he must meet with the additional difficulty, that they have not all been performed. There has been no sufficient performance, or tender of performance, of the contract, to entitle Bigelow or his assignee, to call for a conveyance of one fourth part of the factory.
The bill is dismissed with costs for the defendants.