2 Misc. 138 | The Superior Court of New York City | 1893
The equity powers of the court are invoked by the plaintiffs in this action to compel the specific performance of the agreement entered into with their father at the time they caused the premises in question to be conveyed to him. If the agreement was established on the trial by competent evidence, and it is one which a court of equity should enforce by compelling specific performance, it follows that the judgment herein ivas correct and should be sustained.
The fifth finding of fact made by the learned trial court is as follows: “ That at the time of such conveyance the said Abraham Korminsky promised and agreed to and with said
There -is abundant evidence to sustain this finding. Ho evidence was introduced on the subject by defendant, and the testimony of plaintiffs’ witnesses makes out the agreement beyond all doubt.
The agreement, however, is attacked by the learned counsel for defendant upon the ground that it was not in writing, and, therefore, was absolutely void under the Statute of Frauds. This position is not tenable, for the reason that it clearly appears from the evidence that there was a full and complete performance of the verbal agreement on the part of the plaintiffs. They paid $2,000 in cash at the time the conveyance Was made. The property was taken subject to two mortgages, amounting to $11,000, interest on which mortgages the plaintiffs paid until such time as they paid the mortgages in full and had them discharged of record. All this was done before their father died. A parol agreement in respect to land cannot be avoided in equity because not in wilting, where there has been a part performance of it. Smith v. Smith, 51 Hun, 164. Part performance by the party seeking to enforce the contract is sufficient. Freeman v. Freeman, 43 N. Y. 39. The Statute of Frauds does not apply to this case.
The agreement can be enforced against the heirs at law of the promisor. An agreement, on good consideration, and without fraud or undue influence, to devise land, is valid, and will be enforced by compelling a conveyance from the heirs of the promisor or purchasers, with notice. Pa/rsell v. Stryker, 41 N. Y. 480; Lobdell v. Lobdell, 36 id. 327; Kenyon v. Youlen, 53 Hun, 592.
There was an adequate consideration for the agreement in
“ The rule which courts of equity have adopted in suits for the specific performance of contracts requires that the contract be established by competent and satisfactory proof, to be clear, definite and certain, for the reason, as Judge Stoet expresses it, that a court of equity £ ought not to act upon conjectures,’ and if the proof should end in leaving the contract uncertain, so that the court cannot say what its precise import and limitations are, a decree for a specific performance will be withheld.” Lobdell v. Lobdell, 36 N. Y. 327. The agreement under consideration seems to meet every requirement of the rule adopted by courts of equity. The decreeing of a specific performance of the contract imposes no hardship or injustice upon the defendant, while the denial of such a decree would operate as a fraud upon the plaintiffs. They executed every part of their agreement, in confidence that the other party would do the same. To permit such other party, or his heirs, now to withdraw from the performance of the contract would aid a manifest fraud against the plaintiffs. It appears from the evidence that there was never any desire or intention manifested by the father of the parties to this action, with whom the agreement was made, to avoid its performance or defeat its operation. It is found as a matter of fact, upon competent and sufficient evidence, by the learned trial court “ that Abraham Korminsky, in pm-suance of said agreement, made a last will and testament, wherein and whereby he devised said premises to plaintiffs, but that said will had been lost or destroyed, and plaintiffs have been unable, after diligent search, to find the same.” All the other heirs except the defendant, not parties to the agreement, have conveyed to plaintiffs all the interest in said premises which may have descended to them as heirs at law of Abraham Korminsky, without consideration, and for the purpose of carrying out the agreement in question.
In 5 Wait’s Actions and Defenses, 831, it is stated as' follows : “ A suit for specific performance, like that of foreclosure, is of a twofold character, partly vn personam and partly vn rem. The court may enforce the contract either by ■operating upon the person to compel a conveyance, or may •pass the title of the land by decree.”
In Bennett v. Abrams, 41 Barb. 619, the court says, “ the -plaintiff herein is entitled to a specific performance of the .agreement. That, however, may be impracticable. If so, then he may have proximate relief in some other form, which will secure to him the substantial advantages of his contract.”
The court below committed no error in permitting the .plaintiffs, at the beginning of the trial, to amend their complaint so as to demand equitable relief. The motion was addressed to the discretion of the court and the amendment was warranted by the allegations-of the complaint.
The exceptions taken to the rulings admitting the testimony of Mary Harris and Anna Baron, sisters of the plaintiffs, as .to conversations with their father relating to the agreement and the will, are based upon section 829 of the Code. That section has no application here, for the reason that the witnesses are in no way interested in the event of the action, nor -was the claim of plaintiffs derived by assignment or conveyance from them. Code, § 829; Lobdell v. Lobdell, 36 N. Y. 327; Kenyon v. Youlen, 53 Hun, 592.
The judgment of the court below must be affirmed, with costs.
Freedman and Me Adam, JJ., concur.
Judgment affirmed.
