McPherson v. Schade — 59 N.Y. St. Rep. 36

Majority

p. 36

John B. McPherson, App’lt, v. Herman W. Schade, Resp’t.

(New York Superior Court, General Term,

Filed April, 1894.)

Headnote

Contract—Specific performance—Title.

Specific performance of a contract to convey real estate will pot be decreed, where the refusal to take title is based upon the fact that the walls of the house, contracted to be sold, encroach upon adjoining lands of other owners, and that the vendor cannot, for this reason, convey the title he haá agreed to transfer to the purchaser.

Appeal by plaintiff from decree made at the equity term, dismissing the plaintiff’s complaint upon the merits, and granting the defendant affirmative relief.

J. F. Malcolm & A. Fling, for app’lt; J. F. Miller, for resp’t.

The plaintiff as the owner of the premises .No. 19 Cornelia Street, in this city, filed a bill to compel the defendant, to specifically perform a contract whereby he agreed to purchase said property from the plaintiff. The refusal to take title

p. 37

was based upon the fact that the walls of the house contracted to be sold encroached upon adjoining lands of other owners, and that the plaintiff could not, on that account, convey the title he had agreed to transmit to the defendant.

The trial judge found upon evidence warranting the conclusion, that the objections made were true, that the encroachments existed, and that the plaintiff could not, therefore, give the defendant a marketable title to the property, and as a necessary - conseqence, the plaintiff’s complaint was dismissed, and the defendant awarded judgment for the return of $1,000 paid by the defendant at the time the contract was executed, and for $389.90, the reasonable expenses of searching the title.

The objections to the title were not obviated by any adverse' possession which had ripened into a title by prescription, or by anything which disabled the adjoining owners from asserting their claims and raising the questions determined at the trial. The remedy by specific performance is to a large extent discretionary, and we find no substantial reason for interfering with the disposition made of the case by the learned trial judge.

The judgment must be affirmed with costs.

Sedgwick, C. J., and Meaceam, J., concur.