29 Barb. 212 | N.Y. Sup. Ct. | 1859
The plaintiff prosecutes this action as the assignee of the defendant Columbus W. Seely, and its object is to recover back certain moneys paid by Seely in part performance of an agreement for the purchase of certain lands in Yorktown, Westchester county, made with Joseph B. Hyatt, the ancestor of some of the defendants, and also to recover moneys paid by J. Warren Tompkins,
George E. L. Hyatt, one of the defendants, took out letters of administration upon the estate of Joseph E. Hyatt, deceased, and presented his petition to the supreme court for the specific performance of the intestate’s agreement with Seely, pursuant to the statute. The counsel for the defendants, in their written statement of facts furnished to the court, assert that these proceedings were regular, and that on the 6 th of J une, 1848, a final order was made therein, authorizing a conveyance of the land, according to the terms of the agreement. I read them in a very different light. I think they are marked by a very indifferent appreciation—I may
The impediments found in the way of a specific performance of the agreement have certainly not been placed there by Seely. If there are errors in the proceedings taken in this court to effect that object, they are not his errors, and he is in no wise responsible for their consequences. He entered into the possession of the property in good faith. He made improvements upon it. He united with the administrator of Joseph E. Hyatt in an application to this court for its aid to carry the contract into effect. He deposited, under a stipulation with the administrator, in the Hew York Life Insurance Company, the sum of fifteen hundred dollars, on account of the purchase money, to be paid over whenever a conveyance of the estate was effected. And this money was, by the order of the special term, taken from the hands of the depositary and paid over to the administrator. He has thus exhibited substantial evidence of his willingness and readiness to perform his part of the agreement. If the heirs at law of the deceased Joseph R. Hyatt were capable now of performing the stipulations of the agreement, I should, notwithstanding, think Seely, and the plaintiff claiming under him, should be relieved from its obligations, after this lapse of time, and whatever they have paid on account of it should be repaid to them. Time is certainly of the essence of such an agreement ; and if its execution is suspended for ten years, without fault on the part of the purchaser, it would be inequitable and unjust to require him to fulfill it now.
Under the deed of assignment the plaintiff has all the rights-to the contract, and to the money paid under it, that Seely had. Seely had an undoubted equitable right to look to the property- in question for the reimbursement of the $1500, and the interest, delivered over to the administrator under the order of the court, if the heirs at law of-Joseph R. Hyatt failed, or were incapable of performing the agreement
Lott, Emott and Brown, Justices.]
I think the judgment should be affirmed, with costs of the appeal.