Gaines v. Winthrop

2 Edw. Ch. 571, 1835 N.Y. LEXIS 243, 1835 N.Y. Misc. LEXIS 3

• Court: New York Court of Chancery
• Decided: December 9, 1835
• Status: Published

Opinion

The Vice-Chancellor:

The contract for sale is sufficiently proved ; and enough was done to render it binding upon the testator, and the complainant is entitled to a specific performance of the same.

But the question is : where shall he look for title—who is to execute the proper conveyance ? The rule is that a contract to sell is a revocation in equity pro tanto of a prior will. Still, as to the legal estate, the will remains in force ; the title passes to the devisee and he will be considered a trustee for the purchaser and compelled to convey in fulfilment of the contract: 1 Preston on Abs. 67 ; 3 ib. 260 ; 1 Sugden on Vendors, 183. (9 ed.) The devisees in this case are the persons to execute a deed to the complainant.

Decree accordingly.