Mattila v. Callister — 146 A.D. 569

Majority

p. 569

John O. Mattila, Respondent, v. Herbert J. Callister, Appellant.

Second Department,

October 20, 1911.

Headnote

Vendor and purchaser — sale of land — change indeed after execution —ratification — recovery of money paid.

A vendee who had contracted to buy land being obliged to leave the country gave his brother a power of attorney to act for him in the matter. The vendor executed and delivered to an agent a deed of «the premises wherein the vendee was named as grantee. Without the vendee’s knowledge, but with the consent of his brother, the latter’s name was substituted as grantee in the deed. The vendor, later learned of

p. 570

this, ratified the change, bonght back, the property from the vendee’s brother and resold it.

Held, that the subsequent assent of the vendor to the change of the name of the grantee m the deed was under the circumstances equivalent to the substitution of a new deed for the old one;

That the vendee named in the contract of sale could recover from the vendor all payments made on the purchase price and the expenses to which he had been subjected, for the vendor should not be allowed to retain the proceeds of a sale which was never consummated in addition to the money which he had received when he resold the property. •

Appeal by the defendant, Herbert J. Callistér, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of June, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term.

William F. Timm [Jacob Rieger with him on the brief], for the appellant.

Edward J. Maxwell, for the respondent.

The action is brought in equity to compel the specific performance by the defendant of a contract for the sale of real estate, and has resulted in a judgment for damages, the specific performance being impossible. The parties had executed a written agreement whereby for a stipulated consideration the defendant agreed to convey to the plaintiff the real estate in the month of. August, 1906. Subsequently the- defendant conveyed the property to another, and the judgment covers the payments made by the plaintiff under the contract and the expenses to which he has been subjected in the premises.

■ At the time set by the contract for the transfer of the title the plaintiff was absent from the country, but he intrusted the consummation of the sale to his brother, empowered by written attorney to act for him. The defendant was not present, but had executed and delivered to an agent a deed of the premises in which the plaintiff was named as grantee. Without the plaintiff’s knowledge or consent, but with the consent of his attorney in fact, the name of the latter was substituted for that of ■ the plaintiff in the deed as grantee. Some time afterward

p. 571

the defendant learned of this substitution and alteration, but ratified the change and bought the property back from the plaintiff’s brother, and, as I .have said, sold it for value to another purchaser.

The appellant cites numerous authorities in support of the proposition that the change in the name of the grantee was in law a forgery and that there can be no ratification of a crime. I think, however, in view of the subsequent assent to the change and the repurchase of the property by the defendant, that the transaction may be regarded as equivalent to a change in the deed made at the time by the appellant or a destruction of the deed by the appellant at the time and the substitution therefor of a new one, executed to the plaintiff’s brother as grantee. The learned court at Special Term was of the opinion that the subsequent manipulations of the title by the defendant indicated that he knew of the alteration at least at the time of the repurchase, and it would certainly be unjust to allow him to retain the proceeds of á sale which was never consummated, in addition to whatever he may have received on the sale' as subsequently effected.

The judgment should be affirmed.

Jenks, P. J., Thomas, Carr and Rioh, JJ., concurred.

judgment affirmed, with costs.