Barton v. May

3 Sand. Ch. 450, 1846 N.Y. LEXIS 419, 1846 N.Y. Misc. LEXIS 50

• Court: New York Court of Chancery
• Decided: March 21, 1846
• Status: Published

Opinion

The Assistant Vice-Chancellor.

The interlocutory decree, directed a reference to ascertain what damages, if any, the defendant had or might sustain inconsequence of not having full possession of lot No. 308, forthwith after the first of May, 1843. I cannot understand this otherwise than as an adjudication, that the complainant’s bill was sustained, leaving the terms of the relief to be adjusted upon the coming in of the master’s report.

The defendant however, strenuously insisted that the decree was a mere order by consent; and the cause having been fully argued on the merits, I will examine it as if there had been no interlocutory decree.

The effect of the contract of January 15, 1842, was this. The defendant became the purchaser of lot No. 308, for $1200; and she was to advance for James Maullin, all the money that was requisite in addition to the $1200, to discharge the liens and incumbrances on both lots. For her security, she was to take the title to lot No. 307, in her own name, and retain it until fully paid; and Maullin was to pay her interest on the $1200, till May 1, 1842, then a rent of $50 a quarter, so long as she was kept out of possession of lot No. 308, and he was to pay the advances beyond the $1200, on the first of May, 1843, with interest thereon, and all the costs and charges attending the transaction. There was an agreement on the part of Maullin to pay these several amounts, on which the defendant might have maintained an action of covenant, after the 1st of May, 1843. The forms of the conveyances through which she derived the title, are wholly unimportant. Those forms were a part of the contract) and their effect is the same as if Maullin had conveyed directly to the defendant, on,an agreement to discharge mortgages to a like extent.

I examined the subject of conveyances intended as a security, in Brown v. Dewey, (1 Sandford’s Ch. R. 56,) and referring to that case and the authorities cited, it is sufficient to say here, that after she received the sheriff’s deed in January, 1842, the defendant held the title of lot No. 307, as a security for the fulfilment of Maullin’s stipulations contained in the contract.

The subsequent agreement dated May 1, 1843, merely extended the time of payment to Maullin, and liquidated the sum which was due for the advances and charges beyond the $1200, and the intermediate interest and the rent of lot No. 308. It contained an agreement, by Maullin, to deliver the possession of that lot, and to remove the encroaching buildings forthwith. It contained no clause forfeiting his right to redeem lot No. 307. in default of payment of the money or of removing the buildings ; and if such a clause had been inserted, it would have been nugatory. (See Remsen v. Hay, 2 Edw. Ch. R. 535.)

The result is, that on the first of September, 1843, the complainant had a perfect right as the assignee of Maullin, to have a conveyance of lot No. 307, on the conditions provided in those two instruments.

The defendant refused to acknowledge his right, and interposed a claim for damages, by reason of Maullin’s neglect to remove his buildings on lot 307, which encroached on lot 308. This is the claim which the Vice-Chancellor referred, and the master has reported that she sustained no damages in consequence of the continuance of those encroachments from May till the first of September. I have looked into the testimony, and am satisfied that the master’s conclusion is correct. The defendant does not claim in her answer, any damages by reason of her being subjected to respond to Aikin on her building contract; and the loss alleged in argument and deduced from the probable enhanced rent she would have received from her new building, is not supported by the proofs.

The removal of the buildings, is shown to have been a very trivial affair, and if the defendant had really been in earnest about erecting her house in May, 1843,1 have no doubt that the removal would have been accomplished by Maullin on request, or by the defendant herself, if he had continued to neglect it. The truth is obvious, that she and Aikin had given up the idea of building there, during the summer of 1843 ; and this small affair was a mere pretext to cover her refusal to give up lot No. 307, after she had become persuaded that the deed of that lot might be used to defeat Maullin’s rights entirely.

If these contracts were to be treated as an agreement to, sell lot 307 to Maullin, and not as a security, it would not alter the case. No court of equity would refuse to enforce it, on so unimportant an omission as that set up in respect of the encroaching buildings.

It is objected to the bill, that it was not framed for a redemption ; and if it were, it is fatally defective for the want of an offer to pay what may be found due on an account to be taken. I think there is no force in this point. The bill states the facts, and an offer to pay more than was due, and it prays for a conveyance, as well as general relief. No account was necessary. There were no rents to be accounted for by the defendant, nor any items against her. The sums to be paid were definite, and the only computation requisite, was that of interest.

The answer charges some fraud, in the transfer from Maullin to the complainant. It is an indefinite charge, not proved ; and is not stated as a matter of which the defendant could avail herself.

The first tender was of a sufficient sum. Neither the ground-rent nor the assessment had been paid at that time. The subsequent tender included all these charges, and was also sufficient. As the amount was immediately placed in the bank, subject to her disposal, and has since remained there, she must accept it without interest.

I have struggled to find some excuse upon which to relieve this woman from the costs of the suit, but without success. The offer to arbitrate about the damages, was one which the complainant was under no obligation to accept. In this suit, the defendant does not litigate for these damages merely. She stoutly controverts the whole claim of the complainant, insists that shé owns lot 3U7, and is not bound to convey it at all, and adheres to this position to the last. Whether it be owing to her cupidity, her obstinacy, or to bad advice, or all these combined, she has been the cause of this suit, and she must defray its expenses.

There must be a decree for a conveyance of lot No. 307, to the complainant accordingly, with costs. The defendant is entitled to the money deposited, which was tendered to her, and if she has paid ground rents or the like, pendente lite, which were not covered, by the tender, the same with interest may be allowed to her and deducted from the complainant’s costs.