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(3.) IN CASES OF SPECIFIC PERFORMANCE.
( No. 7.)
For specific performance of a written agreement for the pur
chase 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 Kernạn, 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
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.]'
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 the said sum of $—, and thereupon requested said defendant to pay him, the said plaintiff, the said sum of $and receive said conveyance in manner and form as his said counsel should approve; but that said defendant refused, and has continually since that time and still does refuse, to accept such conveyance or to pay the said sum of $— or any part thereof.
1 Pleadings, p. 236.
And said plaintiff alleges, that at the time of said offer he was, and has ever since continued and still is, seized in fee simple of a good and indefeasable estate of inheritance in said premises, free from all incumbrances, except, &c. (as in the articles of agreement).
Wherefore the said plaintiff demands the judgment of this court, that said defendant may be adjudged specifically to perform and carry into execution the said articles of agreement, the said plaintiff hereby offering to perform the same on his part, and that said defendant pay the plaintiff the said sum of $—, with interest, &c., the plaintiff offering thereon to convey him said premises ; or for such other and further relief as to the court shall seem just and proper, with his costs of action.
For specific performance of agreement for sale of real estate,
and to compel execution of deed against a vendor who has received part of purchase money and delivered up possession, but refuses to make a title.
Title of the Cause.
The above named plaintiff complains of the above named defendant, and alleges the following facts, constituting his cause of action: That the defendant being seized and possessed of a certain house and lot of land, with the appurtenances, situated in, &c., and bounded and described as follows, [describe the premises] : entered into a contract or covenant, under his hand and seal, with the said plaintiff, on the day of — for the sale of said house and lot to said plaintiff, at and for the price of $500, which contract or covenant is in the words and figures following, to wit, [here set forth agreement, verbatim]: as by the said contract, to which said plaintiff begs leave to refer when the same shall be produced, will appear.
And the plaintiff further states, that previous to the execution of said contract, he paid to the defendant the sum of $1,000, as a deposit and in part of his said purchase money, and the said defendant hath since delivered up possession of the said purchased premises to the plaintiff.
And the plaintiff alleges, that he hath always been and is ready and willing to perform his part of the said contract, and, on having a good and marketable title shown to the premises, and a conveyance of the fee simple thereof, discharged of all incumbrances, made to him, to pay the residue of the purchase money to the said defendant.
And the plaintiff alleges, on his information and belief, that the defendant is able to make out a good and marketable title to the said premises, if he thinks proper 80 to do, but that he refuses and declines to make out a good and marketable title to the said premises, notwithstanding the plaintiff hath demanded the same from him, and required him so to do, to wit, on the — (the day specified in the contract, if any), and at the same time offered to pay him the residue of the purchase money, upon having the title made out and a proper conveyance of the said premises executed by the defendant to the plaintiff, his heirs and assigns.