In re Hunter

| New York Court of Chancery | May 9, 1831

A bill for a specific performance is addressed to the sound discretion of the court in the exercise of its extraordinary jurisdiction: St. John v. Benedict, 6 J. C. R. 111., and Seymour v. Delancy, ib. 222. And it will not be decreed in the following cases: 1. Where the remedy is not mutual, or one party only is bound by the agreement: Parkhurst v. Van Cortlandt, 1 J. C. R. 282.; Benedict v. Lynch, ib. 370. 2d. Where the consideration is inadequate: Osgood v. Franklin, 2 J. C. R. 23. The consideration in this case appears to be inadequate from a comparison of the rent with the amount of the purchase money. 3d. When a condition precedent has not been performed; Hatch v. Cobb, 4 J. C. R. 559, and Kempshall v. Stone, 5 ib. 194. The master’s report clearly shows the default of the lessee. The rent was not paid on the day it became due.

The receipt of the rent by Jane Hunter is not a waiver of the default: Jackson ex dem. Blanchard v. Allen, 3 Cow. R. 220. "No act, consent or admission of Jane Hunter, as administratrix of her husband, or guardian of the children, in relation to the real estate, can bind the infants against their interest.

If the lessee is entitled to a conveyance for the consideration of $6,000, he must take it subject to the widow’s right of dower. Under the covenant contained in the lease, the lessee can require from the lessor or his heirs nothing more than a quit-claim deed: Matter of Ellison, 5 J. C. R. 261 ; Van Eps v. Mayor &c. of Schenectady, 12 J. R. 436; Ketchum and Sweet v. Evertson, 13 ib. 359. The petitioner, Jane Hunter, was not a party to the lease. ■ The infants are not bound to pay any costs, but the lessee must bear them.

Mr. H. M. Western, for Daniel Pearson. Such of the cases, which have been cited, as would seem, at first, to boar upon the matter, are cases at law. Van Eps v. Mayor, &c. of Schenectady, relates to a corporation, and is therefore not in point. The same may be said of Ketchum and Sweet v. Evertson, as it relates to a trustee. Ours is a case where a widow has an interest ; and she voluntarily offers to join. And, even if she did not, this is a matter which should be litigated between her and the children. The intention was, that Pearson should be allowed a clear title, if he purchased; and, the intention must govern. He is entitled to a conveyance, clear of dower and other incumbrances. lie ought not to bear the costs, for he has not caused them.

The Vice-Chanceemh.

(After adverting to the circumstances of the case.) The first objection taken in this case is, that the lessee has not performed the precedent conditions of the lease, by erecting fire proof buildings and paying the rent. I am of opinion, however, he has substantially done so.

In the next place, it is said, the covenant to sell is not mutual: the lessee not being bound to purchase; and,'that as this is a “ one-sided” agreement, the court will not decree a specific performance. The cases of Parkhurst v. Van Cortlandt, 1 J. C. R. 282, and Benedict v. Lynch, ib. 370, have been referred to as establishing this point. Chancellor Kent there intimated that such was the rule ; but, in a subsequent case in the court of errors, Clason v„ Bailey, 14 Johns. R. 484, he had occasion to review that opinion, which he found to be erroneous, and admits that the point is too well settled the other way to be questioned. The court may, therefore, in a proper case, where there is a covenant on one side and no mutuality, decree a performance. Besides, in a case like the present, it may be peculiarly proper. The rent may have been fixed at $500, as an inducement to the powder of purchasing the property. This is a fair inference.

It is also contended, that if the lessee is entitled to become the purchaser, at the sum of $6,000, the sale must be subject to the dower right, of the widow of the lessor.

This, however, is not so. The fair construction of the covenant that the lessee should be at liberty to purchase, by paying $6)000, must mean the whole title. The case of Ketchum v. Evertson, 13 J. R. 358, is different. In that case the covenant was, to give a deed. So also in the case of The Corporation of Schenectady v. Van Eps, 12 J. R. 436. The matter now before the court is more like the case of Jones v, Gardner, 10 J.R. 267; where the covenant was, to give a sufficient deed to vest a title in the defendant. The court held the wife must join in the deed; and that a covenant to convey the title meant the legal estate in fee, free and clear of all valid claims, liens, and incumbrances. But a doubt, at first, arose in my mind;—Suppose the lessor was living, and a bill was filed against him for a deed, how could the court compel a conveyance, free from the dower of the wife, in case she refused to join her husband in the deed?. In such a state of things, there would be a difficulty. According to some old cases, if the husband agreed to convey even his wife’s estate, the court would compel him to perform in specie, because it was presumed he had his wife’s consent. There are instances of the husband’s being committed to prison until the wife should convey; but, on making it appear that he could not prevail on her to join in the deed, the court, from necessity, discharged him. Sugden on Vendors, 151. Lord Eldon, however, in Emory v. Ward, 8 Ves. 505, expressed a strong disinclination to follow that doctrine. He shows it would be “ compelling the husband to compel his wife” to execute a deed or to levy a fine; which are voluntary acts, And the same doctrine has undergone a thorough examination by Sir Thomas Plumer, V. C., in the case of Howell v. George, 1 Madd. R. 1. In that case, a specific performance was re- , * „ , \ , fused. Ihe consequence ox such a refusal is, however, to leave the husband exposed to an action at law for damages, upon his covenant. And so here, the lessee has a right of action against the infant heirs upon the covenant of their fathex*. Is it, then, .proper to expose them to this consequence? I think not; more especially as the difficulty can hei’e be obviated. For the whlow has placed herself within the power of the court by her petition, and can now be compelled to join in the conveyance; and one-third of the money can be set apart for her benefit. It is better the lessee should take the property.

I do not consider there is such an inadequacy of price shown in this case, as would justify me, on that ground, in refusing a specific performance. But I think the lessee, in taking the property, must bear all the costs of the proceeding, so that the infants may have the purchase money without diminution.