Rinaldo v. Hausmann

52 How. Pr. 190 | New York Court of Common Pleas | 1876

Van Brunt, J.

I am aware that the language of the court in the case of Morange agt. Morris (3 Keyes, 48), sustains the defendant’s position in this case. The court says that “ it is the duty of the seller to have the mortgages discharged before the time arrived at which he had stipulated to convey.”

The laying down of so broad a principle was not necessary to a decision of that case.

The case of Hinckley agt. Smith (51 N. Y., 21), is a much later authority, and is in direct conflict upon this point with the case of Morange agt. Morris.

The case of Hinckley agt. Smith lays down the rule that the seller must be in a position at the time he is to convey, and upon the receipt of the purchase-price, to deliver just the title he has agreed to convey.

In the ease at bar the evidence shows that if the defendant had shown any inclination to take the title there would have been delivered to him simultaneously with the payment of the purchase-price, satisfaction-pieces of the mortgages about which complaint is now made.

I do not think any purchaser can require more than that he shall receive, when he parts with his money, a deed conveying the premises to him, together with releases of all claims which he has not assumed.

I am therefore of opinion that the plaintiff having been in a position to have satisfaction-pieces of this mortgage delivered to the defendant simultaneously with the payment of his purchase money, has done all he was required to do, and is entitled to a decree for specific performance.

Judgment accordingly, with costs.