16 N.J. Eq. 147 | New York Court of Chancery | 1863
The bill is filed by a vendor to enforce the specific performance of a contract for the purchase and sale of real estate. The contract is in writing, and bears date on the tenth of June, 1862. By the terms of the contract, the complainant agreed to convey to the defendant a tract of land containing sixty acres, more or less, for the consideration of $3600, five hundred dollars to be paid in cash on the fifteenth day of July then next, and $3100, the balance of the purchase money, to be secured by bond and mortgage, payable on the first of May then next, with interest from the first day of November.
The contract is certain and fair in all its parts, and is for
It constitutes no objection to the relief prayed for, that the application is made by the vendor to enforce the payment of the purchase money, and, not by the vendee to compel a delivery of the title. The vendor has not a complete remedy at law. Pecuniary damages for the breach of the contract is not what the complainant asks, or is entitled to receive at the hands of a court of equity. He asks to receive the price stipulated to be pa.id in lieu of the land. The' doctrine is well established that the remedy is mutual, and that the vendor may maintain his bill in all cases where the purchaser could sue for a specific performance of the agreement. Lewis v. Lord Lechmere, 10 Mod. 503; Walker v. Eastern Counties Railway Co., 6 Hare 594; Fry on Spec. Perf., § 23.
The only ground of defence suggested by the answer or by the evidence, is the inability of the defendant to perform the contract by making payment of the $500, agreed to be paid on the fifteenth of July. The allegation is, that he entered iiito the agreement in good faith, expecting to get the money from his wife to make the payment on the contract. That he 'soon after ascertained that his wife would not let him have the money. That he had it not himself and was unable to get it of any one else, and was therefore unable to comply with his agreement. It appears from the evidence that the wife was aware of the husband’s intention to make the purchase, that she, with her husband, visited and examined the premises, and that the final arrangement for the execution of the contract was made in her presence and with her approbation. If the wife afterwards changed her mind and
Uor is the case exposed to the objection which lies to a decree for the specific performance of a contract made by a husband to convey land, the title to which is in the wife, or which is subject to her dowmr. There the very strong objection exists that the decree of the court lays the strongest constraint upon the wife to part with the title to her land, which the wisdom of the law has declared shall not be aliened without her free and voluntary consent. The decree of the court cannot be executed without the wife parts with the title to her land. It operates ex-necessitate as a constraint upon the freedom of hor will. 1 Story’s Eq. Jur., § 731, 734; Young v. Paul, 2 Stockt. 401.
The complainant is entitled to a decree.