Roy v. Willink — 4 Sarat. Ch. Sent. 525

Majority

p. 525

Roy v. Willink.

Jany. 21 ;

March 30, 1847.

Headnote

The conveyance of eight whole lots and the undivided half of four others, is not a compliance with an agreement for the conveyance of ten lots of land.

Where a bill for the specific performance of a contract, by which the complainant was to convey ten lots to the defendant, set forth as a full performance on his part, the tender of a deed of eight full lots and the undivided half of four more, without offering or proposing to perform otherwise, or showing that any other performance was in his power; the bill was dismissed with costs,

p. 526

Demurrer. The bill was filed for the specific performance of an agreement, dated April 10th, 1846, and contained in the following instrument, viz:

“ This is to certify that 1 have sold to Mr. William L. Roy, the house and lot No. 227 Bridge Street, between Tillary and Johnson streets, for $4500 ; to be paid $2500 cash, and $2000 the balance, in ten lots at Paterson, of the late Alfred Lockwood, Robert Garrick estate.

John Abm. Willink.”

April 10th, 1846.

“ I agree to take the property above mentioned, and to give to Mr. Willink a full and good title unincumbered in every shape and form for the ten lots at Paterson, and to pay balance $2500, on ascertaining that the title to the Brooklyn property is good.

William L. Roy.”

The bill stated that after the making of the contract, the complainant with the permission of Willink, entered into possession of the house and lot, in Bridge street, and relying on the com tract being performed, repaired the house, and expended a considerable sum in such repairs and in improvements.

That on the tenth day of April, 1846, one James Nazro of the city of Brooklyn, owned ten lots at Paterson, in the state of New Jersey, which did belong to Alfred Lockwood, since deceased, and were conveyed to him by deed dated June 1st, 1837, and were known by plat 59 containing four lots, plat 131 containing four lots, and the undivided half part of plat 22 containing two lots, when an attachment was issued in behalf of the complainant against Lockwood, and by a sale under the proceedings in that case, the same passed to Nazro, who held such lots in trust for the complainant, and that those ten lots were the only ten lots at Paterson owned by Nazro or by the complainant, or in which the latter had any control or interest, that were of the late Alfred Lockwood, and that belonged to the Robert Garrick estate.

That on or shortly after the 1st of May, 1846, it was mutually ascertained by the complainant and Willink, that the title

p. 527

of Willink to the house and lot No. 227 Bridge street, and of Nazro to the above lots at Paterson contained in plats No. 59, 131 and 22, were good ; and that thereupon the complainant procured a warrantee deed containing the usual covenants, to be executed and acknowledged by James Nazro and his wife, by which those, plats 59,131, and the undivided half of plat 22, were duly conveyed to Willink; a copy of which deed was annexed to the bill. And on or about the 29th day of May, 1846, the complainant in fulfilment of the contract on his part, tendered the deed to Willink, and requested him to execute to the complainant a deed which had been prepared by Willink and handed to him for examination for the house and lot in Bridge street; and notified Willink that he was ready to make the cash payment of §2500, specified in the contract. That Willink took the deeds conveying the house and lot in Bridge street and retained it, and totally refused to execute it or any other deed to the complainant, and also wholly refused to receive the deeds executed by Nazro and wife.

The bill then prayed for a specific performance and that Willink be compelled to receive the deed of the Paterson lots, and to convey the house and lot in Bridge street.

The defendant demurred, 1. Because the contract was indefinite as to the lots intended to be conveyed. 2. The premises described in Nazro’s deed, are not shown to be those contracted for. 3. It does not appear that Nazro’s deed was executed, «fee. as is required by the laws of New Jersey, to pass his wife’s estate. 4. Nor that the complainant was ever ready to complete the contract on his part. 5. That Nazro, who has the title, is not a party to the suit so as to be bound by a decree. 6. For want of equity.

John A. Lott, for the defendant, in support of the demurrer.

A. Thompson, for the complainant.

Without adverting to the want of certainty in the description of the ten lots which were to be conveyed to the defendant, and which of itself involves the case in

p. 528

much difficulty; I think the bill cannot be sustained for another reason.

The contract is specific and certain in this, that the defendant, on his part, is to convey ten lots at Paterson.

Such a contract is not performed by the conveyance■ of the undivided half of twenty lots, or by a deed of eight whole lots and the equal undivided half of four others.

The bill sets up as a full performance, precisely such a deed as I have mentioned; and so far from oifering or averring that the complainant is or will be able to convey ten lots, as the agreement on his part requires ; he stoutly maintains that the eight full lots, and the undivided half of the four other lots, are the identical ten lots described in the agreement.

The argument shows how little certainty there is in the contract itself; and it is wholly inadmissible as a performance on the part of the complainant.

As the bill goes for enforcing such a performance and none other, and does not show that the complainant can or will perform the agreement according to its clear import; the demurrer must be allowed and the bill dismissed with costs.