Ruhe v. Law

Headnote

Resale of property — “difference and costs a/nd expenses on the resale'" — subsequent taxes included within — Boundaries control courses.

■ Appeal from a judgment rendered at Special Term in favor of the defendant, for a counter-claim.

The plaintiff purchased certain real estate at a sain ordered by the surrogate of Kings county, and having refused to complete,

brought this action to recover the ten per cent paid at the time of the purchase. The objections to the title having been overruled, and the terms of sale having provided for a resale and for the plaintiff’s liability in case of a deficiency, and the second sale not having realized as much as the first, the plaintiff was charged with the deficiency and the taxes, which had ad interim been imposed upon the property.

The court at General Term say: “ The chief objection was the use of the word easterly in the description of the property, but the monuments or fixed boundary (Fulton street), mentioned, showed plainly that the word “ westerly ” was intended and was in accord with the diagram which formed part of the description. Known and fixed boundaries control courses and distances. (Gerard on Titles, 175, and cases cited.) * * '* He complains that the sum of $526.25, paid for taxes, imposed subsequent to his refusal to complete and before the second sale, are not within the letter or spirit of the contract, which threw upon him the ‘difference and costs and expenses on the resale,’ but in this he is mistaken. The resale was not delayed and the additional taxes were legitimately a part of the difference in the sum realized. The necessity of their payment was occasioned by his refusal to complete the sale. If he had taken the property the defendant would not have been obliged to pay them under any circumstances. * * * discover no reason why the judgment should be disturbed and it must be affirmed, with costs.”