56 above described lands conveyed to him by the defendant, to William G. Sands, as security for the payment of two hundred and twenty-one dollars, and paid him thirty dollars in money, being part of the purchase money of the said lands, and being, as he is informed and believes, the amount of a judgment owned by the said Sands, against Albert G. Cary, and which was a lien upon the said lands conveyed to said George A. Cary, in trust; and which mortgage and payment, as he is informed and believes true, the said Sands agreed to accept, and did accept, as full payment, and in discharge of the said judgment. That, as he is informed and believes, the said George A. Cary accepted and received the said payment and discharge of said judgment to Sands, as part payment for the said lands conveyed to the plaintiff. That, as he is informed and believes, the said William G. Sands did, on the 25th day of June, 1849, assign the said mortgage on the said land conveyed to this plaintiff, to George A. Cary. That, as he is informed and believes, the said George A. Cary has taken proceedings to foreclose the said mortgage, and has advertised the said premises, pursuant to statute, and given notice that the same will be sold on the fifth day of January, 1850. That this plaintiff has attempted to raise the money to pay off the said mortgage, and has offered the said lands as security for such money, but that he has been unable to procure the same, by reason of the defect in his title, the consent of the said George A. Cary to the execution of the power of sale contained in the last will and testament of Anson Cary, deceased, not having been certified in writing on the aforesaid conveyance from Albert G. Cary to George A. Cary, as required by statute; and he avers that if consent was so certified on the conveyance, he could procure the money, as aforesaid; and that an individual has offered to furnish him with the money to pay off the said mortgage, and to take a mortgage, upon the said lands conveyed to him, as security therefor, provided the title of this plaintiff is made good by the endorsement of the consent aforesaid on the conveyance to George A. Cary. That, as he is informed and believes, the said deed of the aforesaid lands, executed by Albert G. Cary to George A. Cary in trust, is in the possession and under the control of the defendant. That heretofore, and on or about the 1st day of August, 1849, he requested the said defendant to certify in writing his consent, to the execution of the power aforesaid and to the sale of the lands aforesaid, on the conveyance by Albert G. Cary to him in trust, but that said defendant refused so to do. Wherefore the plaintiff demands judgment, that the defendant certify his consent in writing, upon the conveyance executed by Albert G. Cary to him in trust, to the • execution of the power contained in the last will and testament of Anson Cary, deceased, and to the sale of the said lands, to answer the requirements of the statute in such case made and provided, and to perfect the said conveyance, and that he acknowledge the same on the payment of the fees by the plaintiff, and that he deposit the same or permit the plaintiff to deposit the same in the clerk's office to be recorded, on payment of the fees for the record; or for such other relief as to this honorable court may seem meet, with the costs of this action.1 R. J. BALDWIN, 1 I subjoin the following extracts from the opinion of Justice MASON, at Special Term, in rendering judgment for the plaintiff in this action, as it will serve to indicate the class of actions to which a complaint (3.) IN CASES OF SPECIFIC PERFORMANCE. (No. 7.) For specific performance of a written agreement for the purchase of real estate by a vendor against vendee. Title of the Cause. The plaintiff complains of the defendant, and alleges the following facts, constituting his cause of action: That in this form may be applicable. Though the judgment at Special Term was reversed in the Supreme Court, and that judgment affirmed by the Court of Appeals (1 Kernan, 397), yet I have retained the precedent as one that may be of service in framing similar complaints: MASON, Justice. "There is no doubt but the case presented by the papers in this action is one which calls for the interference of this court. STORY says: 'If there be a defective execution of a mere power, equity will interpose and supply the defect; not universally, indeed, but in favor of parties for whom the person intrusted with the execution of the power is under a moral or legal obligation to provide, by an execution of the power.' He adds: 'such defective execution will be aided in favor of persons standing upon a valuable or meritorious consideration, such as a bona fide purchaser for a valuable consideration, &c.' (1 Story Eq. Jur., § 169, p. 191.) And when a trust is coupled with a power, then the court will interfere. (Id.) And relief will be granted, not only when the defect arises from an informal instrument, not within the scope of the power, but, also, when the defect arises from the improper execution of the appropriate instrument. (1 Story Eq. Jur., § 172, p. 195.) And for a further illustration of the rules of equitable interference in this class of cases, see §§ 173, 174, 175, 176, pp. 196. 197, 198, and 199, of the same book. The 131st section of our statute, entitled Of Powers, 1 R. S., 737, reads as follows: 'Where the execution of a power in trust is defective, in whole or in part, under the provisions of this article, its proper execution may be decreed in favor of the person designated as the object of the trust; ' and the 132d section of the same statute, 1 R. S., 737, is as follows: the plaintiff, at the time of making the contract and agreement hereinafter mentioned, was seized in fee simple of a good estate of inheritance, in his own right, of the following described lands and tenements, situated in, &c., [describing the premises.] That being so seized, and desirous of selling the same, he entered into an agreement in writing on the day of with the said defendant, whereby said plaintiff, in consideration of the sum of $ to be paid as therein and hereinafter mentioned, agreed that he or his heirs would, on or before the day of, then next, to the satisfaction of the said defendant or of his heirs, and of his or their counsel, make out a good title to the premises hereinafter mentioned; and by a good and sufficient conveyance, with the usual covenants of warranty, convey to said defendant or his heirs, as he or they should appoint, free from all incumbrances, (except, &c., specifying them), said premises described as follows, to wit: [set forth the description of the premises from the articles of agreement.] That the said defendant did thereby, in consideration thereof, agree with the said plaintiff that he, the said defendant, would pay or cause to be paid to said plaintiff, his heirs, executors or administrators, the said sum of $ immediately upon executing the said conveyance as aforesaid. And it was thereby mutually agreed that said plaintiff or his heirs should be at the expense of making a good title to the said premises, and the said defendant should be at the expense of the conveyances and assurances to be made thereof to him as aforesaid, and said defendant should have 'Purchasers for a valuable consideration, claiming under a defective execution of any power, shall be entitled to the same relief in equity as similar purchasers claiming under a defective conveyance from an actual owner.' And for a full discussion of that kind of equitable interposition and relief, see 1 Story Eq. Jur., § 110 to 183, under the head of mistake." the rents and profits of the said premises, from the said day of provided the purchase of the said premises should be completed on or before that day, but not otherwise, as in and by said articles of agreement, to which the plaintiff begs leave to refer when produced, reference being thereto had, will more fully appear, [or if the agreement be short, it may be properly set forth in hæc verba.]1 And the plaintiff further states, that in consequence of said articles of agreement, and in order to the performance thereof on the part of said plaintiff, who has been ever since willing to perform the same, an abstract of the title to the said estate was, on said plaintiff's behalf, shortly after the date of said agreement, sent to the attorney of said defendant for his perusal, together with all or most of the deeds mentioned in said abstract, for the inspection of said attorney or of the counsel of the said defendant. And several objections having been made from time to time to the said plaintiff's title to the said estate by the counsel or conveyancer of said defendant, before whom such abstract was laid, by or on behalf of said defendant, all such objections were long since answered or cleared up to the satisfaction of said counsel or conveyancer before whom such abstract was laid, who, long since, by writing under his hand or otherwise, approved of such plaintiff's title to the said premises. That the said plaintiff has several times, since his title to said premises was so approved, and before and on the day mentioned in said agreement for the execution and delivery of said conveyance, informed said defendant in a friendly way of his, the said plaintiff's, readiness to execute and deliver to him a proper conveyance of said premises, and offered to do so on payment of 1 Pleadings, p. 236. |