Sutphen v. Fowler, 9 Paige Ch. 280

Sutphen v. Fowler

9 Paige Ch. 280 | New York Court of Chancery | 1841

The Chancellor.

The complainant is clearly entitled to a decree for a specific performance. And as the personal *282estate of the decedent is not sufficient to pay the debts, it is proper that the $50 received by him for another purpose, and not applied as intended, should be set off or applied in satisfaction of the same amount which remained due on this contract. The only difficulty, therefore, in making a perfect title to the premises, to the complainant, immediately, arises from the fact that the heir at law is an infant, and that the lands to be affected by the decree are not within the jurisdiction of the court. But it is perfectly well settled that this court has jurisdiction to decree the specific performance of a contract for the sale of lands in another state, where the person of the defendant is within the reach of its process. (The Earl of Arglasse v. Muschamp, 1 Vern. Rep. 77, 135. Farley v. Shippen, Wythe’s Rep. 135. Massie v. Watts, 6 Cranch's Rep. 148. Penn v. Lord Baltimore, 1 Ves. sen. 444.)

In this case the heir at law is not only within the jurisdiction of the court but she appears to be domiciled here. If she was of age, therefore, there would be no difficulty in compelling a specific performance of the contract; by a decree directing her to give such a conveyance of the premises as would be effectual to transfer the legal title to the complainant according to the lex loci rei sitee. Considering the age of the defendant, a decree by the court of chancery of the state of Michigan, where the land is situated, would perhaps have been more beneficial to the complainant; as this court cannot sequester the property, or putl him in possession thereof by its process. But the court j may decree a specific performance of the contract, and! direct a conveyance by the infant when she arrives at the proper age to enable her to transfer the legal title according to the laws of Michigan ; and may authorize him toy take and to retain the possession of the premises, until that time, if he can obtain possession thereof without suit. In the meantime the court may grant a perpetual injunction, restraining the defendant from disturbing the complainant in such possession ; or from doing any act whereby the. title *283shall be transferred to any other person, or in any way impaired or incumbered.

The complainant is entitled to a decree accordingly. But the bill shows there is no property which has come to the infant, whereby she ought to be charged personally upon the contract of her father or subjected to costs, and as she holds the premises in question as a mere trustee for the complainant, the costs of the guardian ad litem of the. defendant must, of necessity, be borne by the complainant. In this respect it is like the case of an infant trustee, who is called upon to convey, under the statute ; in which case the cestui que trust must pay the necessary expenses of the proceedings. (Ex parte Pearse) Turn, & Russ. Rep. 325.)