49 N.Y.S. 357 | N.Y. App. Div. | 1898
But for some expressions in the opinion of the learned trial justice,
The other objections which the plaintiff made to the title are fully considered by the learned trial justice, and we need add nothing to his conclusions with regard to those objections. He also found upon sufficient evidence'that the plaintiff, -prior to the time fixed for the completion of the contract, had waived all objections to the validity of the title except the objections to the foreclosure-decree.
Here the plaintiff has plainly elected to consider the contract at . an end, while the defendant rests upon the plaintiff’s breach. In fact the plaintiff has alleged throughout that the defendant has no title, that the fee of the premises is actually vested in other people, ■and that, consequently, the contract is impossible of execution. The defendant joins issue upon these allegations, makes no affirmative claim .to specific performance, and simply demands that the complaint be dismissed. If the plaintiff is right in his view, the contract- was as impossible of execution at the time of the trial as it was when the action was commenced. It comes to this, that the plaintiff asserted, and still asserts, that the defendant’s title is hopelessly bad,- and for that reason he declined, and still declines, to accept it. In that attitude he comes into equity and asks the court to decide whether he is right or wrong in that view, and thereupon to give him whatever judgment, is appropriate to the correct view. In other words, if he is right, he wants damages; if he is wrong, he wants specific performance. It is apparent that the court cannot help him in this wise.
The only exception taken upon the trial which calls for special consideration was the refusal of the learned judge to strike out the testimony of Mr. Barney (in whose interest the title seems to have been held by the defendant), to the effect that there was no tenant in possession of the property, and, consequently, no incumbrance growing out of any such tenancy. The special point of the objec
For these reasons, as well as those assigned by the learned trial justice, the complaint as in equity .for specific performance was properly dismissed;. and the judgment should, therefore, be affirmed^, with costs.
Rumsey and O’Brien, JJ., concurred; Van Brunt, P. J., concurred in result. \
Judgment affirmed, with costs.
McLaughlin, J. :
On the 8th day of November, 1895, the parties to this action entered into a contract of sale, in and by which the defendant agreed to sell and the plaintiff to purchase certain real estate, situate in the city of New York, for the sum of $65,000, and the plaintiff then paid,, to apply on the purchase price, the sum of $2,000. On the thirteenth of January following, the time fixed for the completion of the contract.,, the defendant tendered to the plaintiff a deed, proper in form, and the plaintiff was ready and willing to pay the balance of the purchase money; but he objected to the defendant’s title, which is derived from a sale made in pursuance of a judgment of foreclosure in 1877, in the action of Freeman v. Bull & Others, upon, the ground that the foreclosure proceedings were defective, in that the court never acquired jurisdiction of certain parties defendant, and that the.title was not marketable. When the foreclosure proceeding referred to was instituted one William Fitzpatrick held the title to the land in question, subject to the mortgage then sought to be foreclosed, and he and his wife,. Adele O., were made parties defendant, and, as such, were duly served With a copy of the summons ; but before judgment William died, leaving six infant children. Steps were thereafter taken .to make these children parties defendant in the action in the place of their father ; and whether the proceedings taken were sufficient to acconiplish that purpose is the principal question to be determined in this action. The plaintiff insists, that the court never acquired jurisdiction of these, infants so as to deprive them of the equity of redemption, and that defendant’s title is, therefore, defective. His objection is based upon the following alleged defects in the foreclosure proceedings, which will be considered in the order named:
First. That the summons was never legally so amended as to make these infant children proper parties defendant to the action.
Second. That the statute under which substituted service Of the summons was made on the infants was never intended to apply to-infant defendants, and that it did not authorize substituted service on them.
Third. That the order directing substituted service on the infants did not provide that a copy of it should be served upon the parent, guardian or other person with whom they resided.
. Fifth. That sufficient proof of service of the summons on the infant defendants was never made in the action.
First. The order was granted upon an affidavit showing that the time to answer or demur had expired, and that none of the defendants had either answered or demurred except the defendant William Fitzpatrick, and that he had died leaving six children, two over and four under the age of fourteen years. The order asked was, that the summons and complaint be amended “by striking out the name of the defendant William Fitzpatrick and adding: additional parties defendant thereto.” This the order did. And, while it is true that the order Was indefinite as to the “ additional parties defendant” to be added, it, however, does'not follow that by reason thereof it was rendered invalid. And, in this connection, it must be borne in mind that no one was affected or injured by the amendment permitted under this order. The-mother of the infants could not complain, because she was already in default; and the representatives of the father, likewise, could not complain, because no judgment against his estate was asked for or rendered. The infants represented the fee upon the death of the father, and they were only affected by the proceedings to foreclose subsequent to the amendment. The order, therefore, was valid, so far as these infants were concerned, since they were actually made defendants to the action by virtue of it. and the criticism now made was cured by the judgment thereafter rendered.
Second. The action to foreclose was commenced before May 1, 1877, and the provisions of chapter 511 of the Laws of 1853, as-amended by chapter 313 of the Laws of 1863, in relation to substituted service, were applicable (Laws of 1876, chap. 449, § 5, subd. 4). This statute provided for substituted service in two cases: (1) Where a defendant residing in the State, could not be found; (2) or, if "found, avoided or evaded service; and in my opinion was applicable to all defendants, including infants.. The title of the act, as well as the language used, seems to negative-any other-conclusion.- It was an “Act to facilitate the service of
Third. The third and fourth alleged defects appear to be entirely without merit. The order followed the statute almost literally. The statute did not require service upon the parent, guardian or other person with whom the infants resided. But the affidavit upon which the order was made showed that the amended sum.-mons was, in fact, served on the mother of the infants on the 26th of February, 1877, and that such service was made on her “as being the mother of and person with whom ” the said infant defendants, naming them, resided. It will be borne in mind that the mother was personally served as a defendant on the tenth of January preceding, and that, after the substituted service upon the infants, she petitioned for the appointment of a guardian ad litem of the infant defendants, and that upon her petition a guardian was appointed.
Fourth. The statute did not require that the affidavit of service should be annexed to the papers served. It is, therefore, immaterial whether the affidavit of service made by Sherwood was attached to the amended summons or not. When proof was presented to the court from which it could find as a fact that the summons and complaint had actually been served as directed by the order, that was all that was required. (Collins v. Ryan, 32 Barb. 647.) The beginning of the affidavit to the effect that the deponent served the'annexed summons and complaint can be disregarded, and then the question is presented, What did the affiant do ? The answer is contained in the affidavit filed, namely, that he served the amended summons and complaint on the infant defendants by affixing six copies of said amended summons and complaint to the door, and by mailing them through the post office as required by the order and the statute permitting such service. This made the proof of service complete, and it must be held to have been the service of the summons and complaint last amended, since the. affiant stated that the infants were defendants, and they were not named as' defendants in any other amended summons and con^
The other objections made were without merit. As to the unpaid taxes and. assessments, no evidence whatever was offered on the subject, and plaintiffs-attorney stated upon the trial that it was waived. It was also conceded that at the time fixed for completing the contract the defendant produced a satisfaction of the mortgage and was then ready to deliver it to the plaintiff. That a mortgage under such circumstances is not a legal objection, is too well settled to need discussion. That there was a tenant in possession is disproved by the evidence-in the case. It has been suggested that the answer admits that one Anna Speir was in possession, but the same clause of the answer also alleges that the defendant was in possession, and was then able and offered to give the plaintiff possession. As a pleading, I think the answer sufficient, without amendment, to admit the evidence that was admitted upon the trial, to the effect that there was no tenant in possession. At most, the allegations of the answer were indefinite in this-respect, and if the plaintiff had desired, that it be made more definite, he should have made a motion for that purpose, and, not haying done so, he cannot now be heard to complain. Besides, the plaintiff was not surprised on the trial by the admission of this evidence. His son, who. had the principal charge of the transaction, testified that he had learned, after an investigation instituted for this purpose, that there was no tenant in possession. Hot only this, but the plaintiff did not attempt to contradict the testimony of the witnesses Barney and Hay when they stated that at the time fixed for closing the contract there was no tenant in possession. It is true there was a slight encroachment, but the objection to that was not seriously made or considered; and, if it had been,- it was of such a.
Having reached the conclusion that the title is good and that the other objections are without merit, the remaining inquiryis presented: Should specific performance now be decreed ? I think not. The evidence shows that the property was contracted to be sold for several thousand dollars less than its real value, for ' the reason that the seller was receiving cash. The plaintiff then rejected thé title, and he elected to stand upon his legal rights, and he cannot now be heard to say: “It is true I refused to take the title because I thought it was bad, but the court having reached the conclusion that it is good, I will now take it.” To permit such practice would, in the present case, and in many cases, be unjust and inequitable, and lead to much litigation. This view is supported by Haffey v. Lynch (68 Hun, 507), where the court said: “These views are entirely consistent with the present position of the plaintiff. At the time of the bringing of this action he was not willing to accept the title, but claimed that it was defective, -and he speculated upon the defect. Having lost in such speculation, he cannot .now be allowed to claim the advantages of the favorable change in conditions which have occurred since the commencement of the action. Actions for specific-performance cannot be resorted to for the purpose of obtaining extensions of time for the completion of contracts, and the plaintiff should be remitted to his action for damages.” (See, also, Dominick v. Michael, 4 Sandf. 425.) The defendant does not ask that a specific performance be decreed, and it will be observed that upon the trial the plaintiff made no offer to accept a deed, but then insisted upon bis right to rescind the-contract, and, in support of that contention, sought to establish the damages sustained by him for a breach of it. The contract of sale was rescinded by the plaintiff, and the complaint should be dismissed; with ■costs, but without prej udice to the fights of the plaintiff in any other form of action.