Weidenbaum v. RaphaelWeidenbaum v. Raphael
This is a bill for specific performance of a written agreement for.sale of land in Newark made between Mаley Weidenbaum, the wife of Wolf Weidenbaum, as purchaser, and defendant Pauline Raphael and Morris Raphael, her husband, as vendors, and defendants Herzfeld and Dreyfus, who purchased the land under a subsequent agreement. The purchase price of the land
After the death of the vendee the vendors entered into another agreement to sell the premises to the defendants Herzfeld and Dreyfus for thе sum of $12,000, $100 paid in cash on the date of tlie agreement, $6,000 by accepting a eonve3rance subject to а mortgage of that amount, $3,500 by a purchase-money mortgage and $2,400 in cash at the settlement. Subsequently, the convеyance was made under this second agreement and the second mortgage for $3,500 was given to the vendors, and the balance of the purchase-money (due after deduction of liens) was paid.
Before the receiрt of the deed or- the payment of any sum except the $100 deposit the second purchasers had notice of the prior contract, aiid are therefore not bona fide pm chasers except as to the amount previously paid, $100, and are protected only to that extent against tlie previous contract. Haughwout v. Murphy (Court of Errors аnd Appeals, 1871), 22 N. J. Eq. 531; Brinton v. Scull (Vice-Chancellor Grey, 1897), 55 N. J. Eq. 747. The bill is filed by complainant, individually, as administra lor of the estate and next friend of the infant heirs.
The gеneral rule is that heirs of a vendee are entitled to specific performance, and to have the administrator pa3r the purchase price out of the personal estate. Fry Spec. Perf. (4th ed.) §§ 211, 217.
The married woman as vendeе can be compelled to perform specifically (though not as vendor), and as to her the remedy is therefore mutual, as between her heirs and the vendor. Moore v. Baker (1903), 65 N. J. Eq. 104.
But the vendee’s right to specific performance is dependent on the fulfillmеnt of the conditions to be performed on his part, and the assignee of a vendee, even when under no disability, is not permitted to substitute his personal liability on the unperformed conditions against the consent of the vendor. 26 Am. & Eng. Encycl. L. (2d ed.) 126; Pom. Spec. Ferf. § 820. Where the assignees of the vendee are trustees, and the execution of the contract requires covenаnts, specific performance in their favor cannot be compelled unless they personally enter into the covenants. Ibid. §§ 881, 882. In this case the personal estate of the wife is sufficient (if there be no debts) to make llie payment on jjassing title, but not to make any further payments. The infants on receiving the conveyance cannot make any valid contract for further payments, nor assume the payment of the first mortgage, nor can the vendors (or their assignee, the second purchaser) be compelled against their will to accept a mortgagе for the, balance of tire unpaid purchase-money, without any personal obligation for its payment. It is cоntended on behalf of complainant that the agreement of sale does not expressly provide that а bond shall accompany the mortgage or that there shall be any personal liability of the vendee for thе unpaid purchase-money. But there is no equity in this claim, for the agreement of sale contains an express аgreement by the vendee to pay the purchase-money, and were she herself claiming performancе, it could only be upon condition of continuing by the usual bond this personal obligation to pay the purchase рrice, made in the agreement itself. It is impossible, therefore, to carry out formally this provision for the securing of the future payment o£ the purchase-money by installments, but as it was manifestly the primary purpose of the agreеment of sale that the conveyance should be made upon the. payment of the purchase price, my conclusion is, that while the