Nanny v. Fancher — 39 N.Y. St. Rep. 890

Majority

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Oliver T. Nanny, Resp’t, v. Amzi L. Fancher, Impl’d, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

1. Equity—Judgment.

Where the court has obtained jurisdiction of an equity action, it may give such relief as the facts proved require.

2. Vendor and purchaser—Deed.

Plaintiff’s wife and other joint owners of real estate conveyed to defendant their interest in the same at a certain price per acre, excepting their right, title and interest in the dower and thirds of their mother, which they agreed in said deed to sell to defendant at the death of the widow at the same price. Plaintiff’s wife devised her interest to plaintiff. In an action to determine the construction of the will of plaintiff’s wife,

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the deed, and for specific performance, to which all parties interested were made parties, it was held that by the true intent and meaning of the agreement and deed the premises were conveyed to defendant subject to the widow’s dower, and that on her death defendant became liable to the grantors for the balance of the purchase price, and judgment was rendered for such balance. Held, no error; that defendant was protected, as upon payment of the judgment he would have a perfect title to the premises conveyed.

3. Bar—Former adjudication.

The mere fact that the judgment rendered in the action might have been rendered in a former action between plaintiff and one of the present defendants, does not render such action a bar to the present action.

Appeal from judgment entered upon findings of the court at special term, and from order granting an extra allowance.

Action for the construction of a will, deed, and for specific performance of an agreement for the sale of real estate. Plaintiff’s wife and other joint owners of a farm entered into an agreement to sell the same to defendant, Fancher, for $130 per acre, excepting therefrom their interest in their mother’s dower, which they agreed to sell to him on her death at the same price. A deed was accordingly executed and delivered containing said exception and agreement Plaintiff’s wife died, leaving a will, by which she gave to him all her interest in her father’s property and made him executor. After the death of the widow this action was brought to determine the construction of the will of plaintiff’s wife, the agreement and deed, and to require the defendant to accept a deed for the dower interest, and pay therefor, to which action all the grantors were made parties defendant. The trial court found that by the true intent and meaning of the agreement and deed the lands were conveyed to defendant subject to the widow’s dower, and that on her death the defendant was bound to pay the balance of the purchase price to the grantors in the deed and plaintiff, as representing his wife; ascertained their respective shares, and rendered judgment in favor of each for the sum due him against defendant

M. N. Kane, for app’lt; Bacon & Merritt, for resp’t.

—This action was well brought as a suit in equity, as it required a construction of a will, deed and certain written agreements between the parties, and the relief prayed for was in part for a specific performance of a contract.

The court having obtained jurisdiction could give such relief as the facts proved required. Welles v. Yates, 44 N. Y., 525 ; Code, § 1207.

The question under the contract whether any further deeds were required was passed upon at the trial, and it was held that no further conveyance was necessary to perfect the title in the defendant, and, therefore, all there was left to be done was for the defendant to pay the price he had agreed to pay, and judgment was given accordingly.

All persons having any interest in the premises were parties to the suit, and the judgment is conclusive upon all of them.

The defendant will have, therefore, under the judgment a per-

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feet title to what he had agreed to buy when the judgment is executed by payment of the price agreed upon.

We do not think the action of Nanny v. Fancher is a bar to this action.

It is sufficient to say that the parties and the allegations are not the same and entirely unlike relief is prayed for in this suit. It does not follow that because the judgment rendered in this suit, to wit, damages for the price of land, might have been rendered in the former suit, that it is a bar to the present action.

The other defendants had a right to be heard upon the question of the construction of the deed and agreement for the purchase, and whether any further conveyance was necessary.

The question of costs was discretionary with the trial judge. We find no error sufficient to warrant a reversal of the judgment It must, therefore, be affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not'sitting.