Miller v. Mayor of New York

Headnote

Upon a sale of lots belonging to the defendants, by the commissioners of the sinking fund, in April, 1852, the terms of sale were—ten per cent to be paid in cash, with expenses of the sale, immediately ;' fifteen per cent to be paid on the 1st of May, 1852, when the deed was to be delivered; and the remaining seventy-five per cent to be secured by bond and mortgage for five years. K. & B. purchased twelve of the lots, at said sale, upon the above terms, and paid ten per cent of the purchase mopey and expenses of sale, but failed to pay the fifteen per cent, and execute a mortgage for the remainder of the purchase money, on the 1st of May. On the 16th of December, 1852, they assigned their bid to the plaintiffs, and the comptroller of the city promised that, upon payment of the fifteen per cent, and the execution of a mortgage for the balance by the plaintiffs, the property would be conveyed to them.

Held that the defendants were bound by this arrangement between the plaintiffs and the comptroller; and that by such arrangement the default of K. & B. in not paying the fifteen per cent on the 1st of May, and giving their bond and mortgage for the remainder of the purchase money, was waked by the defendants.

And the plaintiffs having, in reliance upon this arrangement, paid to K. & B. the ten per cent and the auctioneer’s fees; Held that they were entitled to a specific performance of the contract of sale.

Held, also, that a delay which subsequently took place, until August, 1868,, when the plaintiffe tendered the amount of purchase money due, with inter

est, having occurred hy mutual consent of the plaintiffs and the comptroller, from time to time, without any fault of the plaintiffs, the defendants were hound by the action of the comptroller, in the matter of postponing the delivery of the deed; and that the statute of limitations did not commence running against the plaintiffs until the refusal of the comptroller to deliver the deed, in August, 1858.

APPEAL from a judgment entered upon the report of a referee.

The defendants, the corporation of ¡New York, sold upwards of 500 lots in April, 1852, at public auction, among these the lots involved in this suit.' These lots, twelve in number, were bought by King & Brush, in the name of Brush. Ten per cent of the purchase money was paid on the day of sale by the purchaser, pursuant to the terms of sale, at the office of the comptroller, to the collector of the city revenue, who tunder the direction of the comptroller gave a written receipt and memorandum in writing, signed by him as such collector, describing the property, and stating the consideration of the purchase, and the party purchasing. ' ¡No deed was prepared by the defendants, and the purchase had not been completed up to December following, when the purchaser proposed to assign his bid to the plaintiffs. The plaintiffs met him at the comptroller’s office, and the comptroller, in behalf of the corporation, assented to the sale and assignment of the bid, stating that ten per cent had been paid by Mr. Brush, and that if the plaintiffs purchased his said bid they would be accepted in his place, and the deed would be made out to the plaintiffs. They thereupon paid Brush the ten per cent, and the auctioneer’s fees, and the comptroller directed the deed to be made out to them, the plaintiffs’ names being by the comptroller’s directions substituted in the books of the corporation as the purchasers. The deed was thereupon prepared and executed by the defendants, under the direction of the comptroller, and was approved by the then counsel to the corporation, Henry E. Davies.

The plaintiffs having been directed to call in a few days for the deed, did so, and by mutual consent the completion of the purchase was postponed. A new comptroller came in, and the comptroller’s- office was moved. In moving, the books had been disarranged, and the entry of ten per cent could not be found. The plaintiffs called to complete the purchase, and the comptroller requested them to wait until the entry could be found, and they did so. The plaintiffs called frequently; they were desirous of getting their deed, but the entry was not found in the comptroller’s book until 1858. The property, meanwhile, had been taxed to the plaintiffs, and they paid the taxes for three years. This delay having taken place at request of the comptroller, until the time of the mortgage had expired, the plaintiffs desired still to leave part of the purchase money on bond and mortgage. The comptroller expressed himself as favorable to this, but doubting his authority to take a mortgage, took the matter into consideration and finally referred it to the commissioners of the sinking fund, who took action in the matter which was not communicated to the plaintiffs until August, in that year, when the then comptroller, Mr. Flagg, refused to deliver the deed. The plaintiffs immediately made a tender of the full amount of the purchase money and interest, and demanded the deed, which was then executed and in the comptroller’s hands. The matter was followed up by the plaintiffs, who applied by mandamus to compel the delivery of the deed. This was refused, the plaintiff having a remedy by suit; and in July, 1864, within six years from the refusal, this action was brought to compel specific performance by a conveyance of the property. On the trial, the defendants’ counsel moved to dismiss the complaint upon the following grounds, viz:

First. The evidence fails to establish any cause of action against the defendants, bio claim or right of action can

be based upon any agreement upon the part of the comptroller to extend the time of performance.

Second. There was no tender of performance at any time, nor could there have been, by reason of the omission of King & Brush to pay the balance of the purchase money. (or to give the mortgages required by terms of sale.) The only tender alleged to have been made by the plaintiffs occurred on the 11th August, 1858, more than six years after the day upon which King & Brush were to perform (May 1, 1852.) The plaintiffs are barred by the statute of limitations, even admitting "that the tender was a good one. This action, as appears from the records, was not commenced until twelve years after the sale, namely, August 3, 1864. Even if the statute of limitations is not a bar, time was of the. essence of the original contract, and a court of equity will not decree specific performance in favor of the party in default, who has omitted to do what he had contracted to do.

Third. But even if this is not so, the court will refuse its equitable aid or interference when the lapse of timé and when the delay has been so great as to constitute laches disentitling the parties to its aid, and evidencing an abandonment of the contract, irrespective of any peculiar stipulation as to time.

Fourth. It would be hard and unjust to enforce specific performance.

Fifth. The fact that the plaintiffs gratuitously paid taxes upon the property to which they had no pretense of title, and which taxes were imposed by the sovereign power of the state, through the board of supervisors of the county, will not be considered as an estoppel on the part of these defendants, a municipal corporation, no party thereto.

The referee denied said motion, and the defendants’ counsel excepted.

The referee found the facts in favor of the plaintiffs, that the delay was by mutual consent, and not the fault

of the plaintiffs, and a decree was entered for specific performance by the defendants.

From this judgment or decree the defendants appealed.