45 N.J. Eq. 27 | New York Court of Chancery | 1889
To present in more logical sequence the causes of demurrer, I will consider them somewhat out of the order in which they are stated in the pleading. The ninth and twelfth causes, which question whether there was a contract to transfer the title of the
We are not without precedents of contracts, similar in all important particulars, which have been upheld in this state. In France v. France, 4 Hal. Ch. 650, a father agreed with his son that, if the son should live upon a lot of woodland that was indicated, and clear and improve such parts of it as he thought proper for tilling and meadow, he would convey the laud to the son after the improvement had been commenced. The son accepted the proposition, went into possession, cleared a portion of the land, built upon it and continued to reside there. The contract was upheld by a decree for specific performance against the father. So similar contracts were sustained in Van Dyne v. Vreeland, 3 Stock. 370; S. C., 1 Beas. 142; and in Davison v. Davison, 2 Beas. 246.
While it is true that the contract concern's an interest in lands, and, within the terms of the statute of frauds, should be in writing, yet there has been, I think, such performance of it on the part of Jacob and his heir and widow, that equity will enforce
It appears in the present case that Jacob Young, confiding in his father’s promise, entered upon the farm in 1849, and remained in possession of it for twenty-seven years, until he was murdered upon it, and that thereafter, till his father died, hi's widow and heir maintained the same possession. During that time he cared for, repaired, cultivated and improved it, expending thereon not only his own earnings, but also moneys that he had obtained from his wife. The contract was wholly performed to the time of his death, upon his part, and, apparently, in the utmost good faith. It is manifest that after such performance, non-compliance with the agreement, upon the part of the father, would work a most grievous fraud.
The seventh and eighth causes of demurrer raise the question whether the widow and the heir-at-law of Jacob can enforce the performance, of the contract.
It is established by abundant authority that where there is a contract for the purchase of land, it descends in equity to the heirs of the vendee; and they may call upon the executors or administrators of the vendee to, discharge the contract out of the personal estate, so as to enable the heirs to demand a conveyance from the vendor. The contract is regarded as executed, and the
That which has been said as to the causes of demurrer just considered disposes of the sixth ground of demurrer, which challenges the title of Dorothea as a complainant.
By the seventh ground, it is objected that the complainant,
The second cause of demurrer questions the right of the complainant, Huldah Young, to recover from the defendants the-moneys that her husband had from her and expended upon the farm. The bill does not make such a claim. By it, both com
The money of Huldah, which was expended in the improvement of the farm, came to her possession in May, 1849, and, by law, then became the property of Jacob. And this, even though some part of it may not have been expended until after the passage of the act of 1852. Having once vested in him, it did not thereafter, by force of that act, divest.
But it also appears that the expenditure of these moneys was with the full knowledge and consent of the complainant, Huldah, by her active participation, and without any understanding or agreement that they should thereafter be repaid to her. If the moneys belonged to her, and were not the property of her husToand, as indicated, I think that the expenditure of them upon the property of the husband in the acquirement and improvement of a home for his family, as stated in the bill, constituted a gift of the moneys to him. Black v. Black, 3 Stew. Eq. 215, 219, and cases there cited. Under any of these views, Huldah would have no right to recover the $1,872.71. If such money recovery is had, it will be because Jacob’s contract of purchase should not be enforced. It cannot be regarded as real estate to be recovered by the heir and widow, but, as personalty, must go to the personal representative. And here it becomes apparent that the personal
This conclusion, that the personal representative of Jacob Young is entitled to any money recovery in this suit, renders it unnecessary to consider the first ground of demurrer, in which it is insisted that the bill is multifarious in combining a separate money claim by the complainant, Huldah, with a real estate claim by both complainants. A prayer of the complainants for a conveyance of real estate, combined with an alternative prayer that if such relief cannot be afforded that the moneys which were laid out upon the farm be repaid, does not make the bill multifarious, even though the personal representative must be made a party to receive that money. In the case in hand, it would be a wise precaution to make the personal representative a party, with a view to such alternative relief, because something may arise in later stages of the suit that will preclude the specific performance of the contract between Jacob and his father, but will not prevent the recovery of all money expended in the performance upon Jacob’s part. The personal representative is not alone interested in such money recovery. If it should be had, both of the complainants would be interested in it, one as widow and the other as next of kin. The personal representative, if a party to the suit, would be interested in every question in the case, because upon the success or failure of each question his right to recover the money would depend. As to the principle upon which a suit of this dual character rests, Judge Story says (2 Story Eq. Jur. 96): “It has been laid down that if a man has performed a valuable part of an agreement, and is in no default for not performing the residue, there it is but reasonable that he should have a specific execution of the other part of his contract, or at least should recover back what he has paid, so that he may not be a loser; for since he entered upon the performance in contemplation of the equivalent from the other party, there is no reason why an accidental loss should fall upon him any more than upon the other.” And- the question as to multifariousness is set at rest by the language of Vice-Chancellor Van Fleet in Ferry v. Laible, 12 C. E. Gr. 146, 150, where he
The third ground of demurrer here presents itself: To what extent does the laches of the complainants bar their claim to equitable interposition? Unexcused laches in bringing a suit for specific performance of a contract will bar a complainant’s right to the aid of this court. This doctrine rests upon the tenet that for the peace of society this court will discourage antiquated demands by refusing to interfere where there has been gross laches in prosecuting rights, or long and unreasonable acquiescence in the assertion of adverse rights.
The remedy by specific performance is discretionary. Johnson v. Somerville, 6 Stew. Eq. 152; Blake v. Flatley, 17 Stew. Eq. 228. In Eads v. Williams, 4 De G., M. & G. 674, 691, Lord Cranworth said: “ Specific performance is relief which this court will not give, unless in cases where the parties seeking it come promptly, and as soon as the nature of the case will permit.” The courts of this state have invariably been guided by the rule thus stated. Van Doren v. Robinson, 1 C. E. Gr. 256; Haughwout v. Murphy, 6 C. E. Gr. 118; Lawrence v. Lawrence, 6 C. E. Gr. 317; Merritt v. Brown, 6 C. E. Gr. 401, 406; Reddish v. Miller, 12 C. E. Gr. 514, 521. See, also, Fry Spec. Perf. (3d Am. ed.) 526 and note, where many cases are collected.
In the case under consideration the complainants’ delay was
The insistment in behalf of the complainants, that the defendants are trustees of this land for the complainants, will not relieve them from the application of this rule, for while it must be acknowledged, as a general principle, that, as long as the relation of trustee and cestui que trust is admitted to exist between the parties, and the trust continues, lapse of time can constitute no bar to proper relief of the cestui que trust, it is also well settled that this doctrine will not apply to implied or constructive trusts, nor even to an express trust, where an open, public, adverse claim is set up by the trustee against his cestui que trust, and the longer existence of the trust is denied. Big. Fraud 33; 2 Story Eq. Jur. 845; Kane v. Bloodgood, 7 Johns. Ch. 90; Dean v. Dean, 1 Stock. 425. The defendants, in effect, denied the existence of any trust impressed upon this land in favor of the complainants from the Fall of 1877, and since that time, for nine years preceding the filing of the bill, have maintained an unmistakable attitude of denial of any trust.
The tenth ground of demurrer is that Henry Young disposed of the farm to his sons, William and Peter, in his lifetime, and that he had the right to do so.
There is no difficulty in the enforcement of the contract against the defendants if they had notice or knowledge of it at the time of the alienation of the property, or if they were mere objects of their grantor’s bounty and not bona fide purchasers for value. If they are purchasers with notice, or without having given value for the land, they have no equity against him who has, in good faith, contracted with their grantor and given value upon the faith of that contract. They are liable to the same equity as their grantor, stand in his place and are bound to do that which he would be bound in equity to do. They take the land im
All that it is necessary to say upon the eleventh cause of demurrer is, that while the actions of trespass and ejectment settled all questions as to the legal title between the parties to them, they did not and could not determine the equitable claims that the complainants had. Wells Res Adjudicata and Stare Decisis § 328.
The last ground of demurrer, that the husband of Dorothea McCord should have been made a party to the bill, is not well taken. The statute (Rev. p. 638, § 11) empowers a married woman to maintain an action in her own name for the “ recovery and protection” of her property, without joining her husband as a party.
The demurrer will be allowed, with costs.