Caldwell v. Croft

Headnote

Specific performance—Form of decree for assumption of mortgage by vendee—Provision as to form of conveyance—Provisions as-to apportionment of mortgage interest, and as to assessments.

Appeal by defendant from judgment entered upon findings by judge at Special Term.

Action for specific performance of a contract to convey real estate. The contract vendor was Mrs. Devlin, who died before time of performance, which was fixed by the contract at July 1, 1885. She left a will. Her executors, who are said to be trustees also, holding the legal title, were made defendants, as also were the heirs-at-law. One of these heirs-at-law appeals from the judgment that the contract be specifically performed.

The Court at General Term, said:—“There was not any error in determining that the plaintiffs should have

such a kind of relief. The appellant does not claim that the executors did not have the fee. ' There is a certain obscurity as to some of the conditions of performance which the appellant, having been made a defendant, can ask to be cleared away. The contract, as it was, is to be performed. A different contract is not to be enforced. The contract provided that the assumption of a bond and mortgage of $27,000, should be part payment of the agreed consideration. The vendor agreed to deliver ‘ a proper deed containing a general warranty and the usual full covenants.....for the conveying the fee simple.....free from all encumbrances, except the said mortgage.’ This contemplates that the land should be subject to any encumbrances that might be created, after at least July 1, 1885. The judgment provides for a conveyance in fee, ‘ the form of the same to be settled and approved by one of the justices of this court in case the parties differ respecting it.’ Regularly, the form should be specified by the judgment. The judgment proceeds to declare that the land is to b e subject, however, to the payment of $27,000, the amount of a mortgage now on said premises.’ . The provision should have been in accordance with the contract, that the grantee assumes the payment of the bond and mortgage as part of. the consideration. The further provision of the judgment that the grantee was to pay interest on this mortgage only from September, was equitable, as the plaintiff testator had not the benefit of occupation down to that time. I think, however, that there was a mistake in the next provision, which is and also subject to any and all assessments imposed upon said premises since the first day of September, 1885.’ This varied the contract. By that the land was to be subject to liens for taxes as well as assessments from July 1.’ After that day and on August 17, 1885, the taxes for 1885 became a lien, and on August 11, 1885, an assessment for opening 140th St. to the amount of $31.83, was confirmed. The premises should have

been made by the conveyance to be delivered, subject to all liens arising after July 1.”