1 N.Y.S. 465 | N.Y. Sup. Ct. | 1888
The action was brought for specific performance of a contract for the sale of land, made between the parties January 16, 1886, by which the plaintiff agreed to sell, and by a good and sufficient warranty deed convey, to the defendant certain premises situate in Livonia, Livingston county, on receiving payment, consisting of a conveyance by the defendant to her by a like deed of a lot in the city of Rochester, and $800 in money, to be made on or before January 23, 1886; and the" conveyances of the parties, respectively, were to be accompanied by a complete search relating to the title of the premises. The trial court found that the plaintiff tendered performance on her part to the defendant, who by his refusal to perform was in de
The main question upon the merits is whether the defendant was relieved from liability to perform the contract by delay on the part of the plaintiff to furnish a satisfactory search of the title to the land she undertook to convey. The formal tender by the plaintiff of her deed, with a complete search, was made about the 1st of September, 1886, when the defendant declined to accept or make performance; and on his part it is contended that the contract had ceased to be effectual to require him to do so. The agreement contains no provision which necessarily makes time as of the essence of the contract, but the parties might make it so; and if the delay was attributable to the plaintiff without the acquiescence of the defendant, and unless it was in some manner waived by him, he was relieved from the performance of the contract, and the plaintiff was not entitled to recover. Bank v. Thomson, 55 N. Y. 7; Benedict v. Lynch, 1 John. Ch. 370; Babcock v. Emrich, 64 How. 435. This proposition involves the inquiry whether the defendant was ready and offered to perform and thereby placed the plaintiff in default. Hubbell v. Von Schoening, 49 N. Y. 326. It was evidently» contemplated that the parties would meet for performance of the contract at the office of the lawyer who drew it. The court has found that on the day specified, January 23d, the plaintiff was ready and willing to perform the agreement on her part. And it appears by the evidence that on that day the plaintiff’s agent was at that place, with a deed duly executed by the plaintiff, and ready to deliver it; that the defendant was not there on that day, but the parties met at that placemen the Monday following, and objection was made to the search produced by the plaintiff to the effect that it did not extend back 20 years, and it did not represent that a decree of mortgage foreclosure had been satisfied of record. There appeared a satisfaction of the mortgage, which did not appear to also include the decree, but the plaintiff’s agent had there an unacknowledged paper subscribed by the attorney for the mortgagee to the effect that the decree had been paid; and there was evidence on the part of the plaintiff tending to prove that the defendant then said substantially that he knew the plaintiff had title free from incumbrance, but that if he wanted to sell, objection might be made unless the search showed that the title was good of record; that the defendant acquiesced in the plaintiff taking further time to obviate the objections, which was afterwards done; and that the defendant had at no time prior to the formal tender before mentioned tenderedperformance, or declared his readiness to perform on his part. Upon this state of facts the defendant was in no situation to effectually claim that the plaintiff was in default, or that he was relieved from the performance of his contract. If, however, the court had deemed the facts governed by the evidence on the part of the defendant, it could not have directed judgment against hini. But upon the conflict of evidence a question of fact was presented, and it must be assumed that the court adopted as correctly representing the facts the evidence which was the most favorable to the plaintiff’s case; and in that view the findings of fact were supported in the sense essential to the determination of the court. In the conclusion of law the court determined that the plaintiff was entitled to judgment directing the defendant to execute and deliver a conveyance in fee with covenants of warranty and release of dower. Exception was taken to the conclusion that the conveyance should embrace a release of dower, and it is urged this was error, because that is dependent upon the voluntary action of the wife. It is true, the wife cannot be required by the court to release her inchoate right of dower, and if the court had so directed it would have been ineffectual, and to that extent error. Dixon v. Rice, 16 Hun, 422. The court has not sought to do that. The defendant made the agreement, and undertook to make a conveyance which required the release of dower of his wife in the premises. The decree operates on him only, and it may be assumed that he will be able to fully perform
Haight and Dwight, JJ., concur.