121 N.Y.S. 750 | N.Y. Sup. Ct. | 1909
This is an action to recover damages for an alleged breach of a contract for the sale of a house and lot situate in the city of Mt. Vernon, N. Y., and to impress a lien upon said premises for the amount of said damages so sustained by plaintiff.
The contract, in writing, was entered into by plaintiff and defendant on the 20th day of March, 1909, and by the agreement the deed was to be delivered May 1, 1909. The purchase price agreed upon for the property was $8,500, $6,200 in cash, and $2,300 by delivering a bill of sale of certain personal property, consisting of machinery, etc., owned by plaintiff, and for delivery of which to defendant, defendant agreed to allow purchase on price of said property, the value of the same being agreed upon between the parties at the sum of $2,300. Thereafter plaintiff and defendant agreed that plaintiff should take possession of the real property for the purpose of making certain improvements thereon. On the 1st day of May, 1909, plaintiff refused to take the deed of the property, because she claimed that defendant’s title to said property was defective, in that the defendant’s title came through a foreclosure of a mortgage in an action entitled, “Jennie A. Denman v. Albert W. Mott and Others.”
Plaintiff claims that the order directing the service of the summons by publication in said action against Albert W. Mott was void, and therefore Mott’s equity of redemption was not cut off; that thereafter the sale was adjourned three times at defendant’s request, and on May 18, 1909, plaintiff refused to grant any further adjournment and so informed defendant, and gave up possession of the property to defendant. The plaintiff was justified in refusing the deed offered by defendant. The objection was good, as Mott’s equity of redemption had not been foreclosed because the order of publication in the foreclosure action was void.
The plaintiff was entitled to a marketable title, free from reasonable doubt. The proof upon which the order directing service of the summons by publication was based in the foreclosure action through which defendant received his title was imperfect, in that the affidavit alleged “that Albert W. Mott, one of the defendants herein, cannot after due diligence be found within this state, and that, as deponent is informed
Defendant asks for specific performance because he tendered a deed executed by Mott and a release of the judgment. This was some time after the personal property had been sold, and after plaintiff had refused to grant any further adjournment. There were several judgment creditors of Mott who had been served in the foreclosure action; and I believe there is some question of doubt under these .circumstances whether the title was marketable. Regardless of this, however, I think to ask the plaintiff to wait from May 1, 1909, to about July 1, 1909, would be unreasonable. The ownership of the personal property that the defendant was to accept in delivery of deed had been changed. The property was held until June 26, 1909, when sold. She could not now obey a judgment directing specific performance. Baumeister v. Demuth, 84 App. Div. 394, 82 N. Y. Supp. 831. The defendant acted in good faith, honestly believing that at the time he entered into the contract to convey he had a good title.
The plaintiff is entitled to recover $850, the amount paid at the time of signing óf contract, $15 for survey, $86.80 for examining title, and $100 for improvement of premises, in all $1,056.80, with interest. Klim v. Sachs, 102 App. Div. 44, 92 N. Y. Supp. 107; Gibert v. Peteler, 38 N. Y. 165, 97, Am. Dec. 785; Walton v. Meeks et al., 120 N. Y. 79, 23 N. E. 1115. This amount is a lien upon the real property. Elterman v. Hyman, 192 N. Y. 113, 84 N. E. 937, 127 Am. St. Rep. 862. Plaintiff is entitled to costs. Settle findings on notice.
