121 Misc. 93 | N.Y. Sup. Ct. | 1923
The action is for specific performance. Defendants are husband and wife and the complaint asks that the husband be compelled to give a warranty deed of certain lands in the town of Glenville, Schenectady county, to plaintiff, under an agreement between himself and plaintiff, and that the wife be compelled to convey her inchoate right of dower therein. The agreement was made on or about June 14, 1920, and its terms and conditions were
“ Received of Frances Obrey one hundred ($100.00) Dollars to apply on contract for 11| acres in the town of Glenville and known as the Sturges farm. Purchase price to be $3500.00 three thousand five hundred dollars payment to be made on the 14th of each month at the rate of $30.00 thirty dollars per month. On completion of payments to the amount of one thousand $1000.00 said E. Collins to deliver deed of property and said Frances Obrey to give mortgage for balance of purchase price. This contract to become void at option of E. Collins in case of non-payment of above payments.
“ Edmund Collins.”
Plaintiff took possession on that day, or soon thereafter, and has been in possession ever since. The property was subject to a mortgage for $750, and she knew it. The mortgage has not been reduced. At that time the husband owned the adjoining property, and on October 25, 1920, he conveyed all, including the property in suit, to his wife, by a deed, which was recorded on that day. No change was made in the assessment, but it was assessed as a whole, as before. After taking possession, plaintiff paid various amounts, at various times, sometimes to the husband, at other times to the wife, and obtained a receipt for each payment. Each receipt stated that the payment was to apply on the contract, except the one of January 15,1921, for $30, which stated that it was to “ apply on contract in full to date.” She did not pay the interest on the ' mortgage. She testified that nothing was said about “ interest on that mortgage.” And she did not pay the taxes. Defendants, or one of them, paid both interest and taxes. On July 5, 1922, she paid $180, making a total of $1,000, and she asked for a deed. Then the question of interest on the unpaid balance and the payment of the taxes on the property arose, and plaintiff claimed, in effect, that the interest was not mentioned to her, while defendants claimed that both were to be computed when the payments totalled $1,000, and when the deed was to be given, and were to be included in the mortgage, which was to be given. And the evidence is to the effect that a deed was prepared and signed and that the attorney for defendants told plaintiff that he would deliver it to her if she paid. And it is also to the effect that she did not and has not tendered a mortgage or cash for the balance of the purchase price. It will be observed (1) that the complaint asks for a warranty deed, but that the writing does not specify the kind; (2) that it asks that the husband be required to give the deed, and that the wife be required to convey her inchoate right of dower, although
Judgment accordingly