2 N.E. 43 | NY | 1885
The sale under the decree in partition in this case was made on the 22d day of January, 1884. The appellants, Murray, Phelan and Mander, who were severally purchasers upon the sale, objected to taking a deed of the premises, upon the ground that the referee could not give a good title thereto, for the reason that the infant defendants had not been brought before the court by a proper service although they had appeared by guardians adlitem.
The plaintiff applied to the court and obtained leave to file a supplemental complaint and bring the defendants in by a proper service, and such proceedings were had that a judgment was rendered on the 21st of April, 1884, making the interlocutory judgment and the sale binding upon all the parties. In the mean time no action was taken by the appellants to be relieved from the sale.
It will be seen that a delay was made in furnishing a good title for a period of about three months after the sale had been made, and on the 17th of May, 1884, a motion was made to compel the purchasers to complete the sale. The appellants claim that by the delay in obtaining a decree which would perfect the title, they were exonerated from completing the sale. It appears from the appeal papers that the purchasers were to have possession in the month of February, and *406 that in reference to two of them, by reason of the delay, the premises were not rented for the succeeding year, and they were thus deprived of the benefit to be derived from the occupation of tenants and the payment of rent. We think that the delay thus made discharged the purchasers from any obligation to take title. The terms of the sale were not complied with by the respondent, and the delay was not occasioned by any fault on the part of the purchasers. For aught that appears, they were ready and willing to fulfill according to their agreement, and it was only the failure of title that prevented a compliance by them with its terms.
Under ordinary circumstances, a purchaser at a partition sale is entitled to a conveyance by a good title at the time fixed for that purpose, and an unreasonable delay in furnishing the same is a sufficient answer to an application to compel him to take a conveyance and fulfill the terms of sale. His right to such a conveyance is fixed by the agreement, and when there is a failure within a reasonable time to fulfill the same by a proper and valid deed, he is discharged from liability. The delay of the seller for three months to perform the contract was a sufficient excuse for refusing to comply with its terms after the expiration of that time. The purchasers were not bound to wait so long, and it matters not whether they sustained the injury by the delay or otherwise. The seller was bound to furnish a good title, and when he failed to do that, it did not rest with him to say that he would supply the defect thereafter, as might suit his convenience.
Under the circumstances presented by the record before us, the question does not arise whether time was of the essence of the contract. The delay here is for too great a period to authorize the application of this principle.
There is no proof that the purchasers acquiesced in waiting to allow the respondent to perfect the title. They had no connection with the proceedings instituted and prosecuted for that purpose. They were not parties in the action and had nothing to do with the steps which were taken, after the sale was had, to remedy the difficulty. It does not appear that they *407 had any knowledge of what was done, and they were not in a position to object to or take part in the proceedings. They could not be regarded as acquiescing in a proceeding to which they were not parties and of which they had no notice. Their silence cannot, in any sense, be considered as acquiescence in what was done.
For the reasons stated, without considering the other questions, we think the order of the General Term should be reversed, and that of the Special Term affirmed, with costs.
All concur, except EARL, J., not voting, and FINCH, J., dissenting.
Ordered accordingly.