53 N.J. Eq. 588 | New York Court of Chancery | 1895
This is a bill for specific performance of an agreement for the sale of real estate, evidenced by a note or memorandum signed by the defendant and set out in the bill as follows:
“ J. City Feb. 19th, 94.
“Received from Mrs. F. E. Price fifty dollars ($50) in consideration of the purchase of a lot on Bramhall Ave. No. 470.
“The price for which is twelve hundred and seventy-five ($1275).
“Cecilia M. McKay.
“ In case anything should occur I promise that the stable shall be removed, also the privilege of access to my private sewer on property.
“C. M. McKay.”
No date was fixed by this paper for the delivery of the deed, but on the 19th of March, 1894, the complainant offered the balance of the purchase-money and requested a deed for the premises, which the defendant refused to give, and on the 31st
If the defendant had devised the property by this description in her will, it seems to me to be impossible to say that the lot would not have passed by the devise. Sir George Jessel, in Shardlow v. Cotterell, 20 Ch. Div. 90 (Court of Appeals, 1881), lays this down as a legitimate test of sufficiency of description under the English statute o’f frauds, and it seems to be a sound and safe rule to be applied under our statute.
That the agreement required by our statute may sufficiently appear in a receipt signed by the defendant, is settled in Lewis-, Administrator, v. Reichey, 12 C. E. Gr. 240, and that the description is not indefinite by reason of the mere omission to state the township or county in which the lands lie, is also settled in this court. Robeson v. Hornbaker, 2 Gr. Ch. 60.
In Ross v. Allen, 45 Kan. 231, relied on by the defendant, the court held that where a receipt was dated “Leavenworth, March 19th, 1887,” and the property was referred to therein as “Numbers 617 and 619 Delaware street, Block 74, city property,” the memorandum was defective in not giving the location in any state, county or city. This receipt was not, however, signed either by the owner, or by any person for the owner, and was, on this account, held invalid, and on the question of location the court says (at p. 574) • “ If the name of the owner or vendor had been given, it would have aided in the identification of the property, but her name nowhere appears in the writing.” This element for identification is present in the memorandum here signed by the defendant herself, and which must, therefore, be taken as a sufficient declaration that the contract refers to the No. 470 Bramhall avenue, of which she is the owner.
The second cause of demurrer is based upon the theory that the duty which the defendant is to perform, in relation to the stable and sewer, is so indefinitely expressed in the memorandum that the court will not decree performance of it. The answer to this contention is, that the complainant, by her bill, seeks only the performance of the agreement to convey the lot, without asking for any action or decree of the court with reference to the stable or sewer. The agreement to convey, if definite'as to the lot, cannot be made ineffective by reason of the indefiniteness of other provisions relating to acts or duties of the defendant which are not insisted on by the complainant. Defendants’ equities, either to resist performance or to obtain terms, on account of these provisions, if such equities exist at all, must be made to appear by answer, and cannot, on bill and demurrer, be held to be so certain as to invalidate the clear agreement to convey.
The other causes for demurrer were practically abandoned at the hearing, and, in view of the allegations of the bill, are so manifestly unsubstantial that none of them can be sustained.
I advise that the demurrer be overruled, with costs.