Bensel v. . Gray

Rapallo, J. The trial court found as matter of fact that the agreement between the plaintiffs and defendant was, that the plaintiffs should transfer and set over to the defendant *521 the two indentures of lease described in the agreement and all and singular the premises therein mentioned and the buildings thereon, together with the appurtenances, for and during the term of said leases, in consideration whereof the defendant agreed to make the payments specified in the agreement. Also that the leases were irregular and defective and the proceedings taken to authorize the mayor, aider-men and commonalty to make them were defective in various respects specified in the findings. A copy of the agreement is set out in the findings, and they also contain a conclusion of law that by the terms of the contract the plaintiffs were bound to grant, convey and assign to the defendant, not only said indentures of lease but with them an estate in land, viz. : in all and singular the premises therein mentioned and described and the buildings thereon, together with the appurtenances, to be held by the defendant and his assigns from the 1st day of May, 1871, for and during the residue of the term of years mentioned in said indentures. The agreement in fact contains language which sustains the findings and conclusion of the trial court. It is contended that this resulted from the inadvertent use of an inappropriate, printed blank, and that the agreement to transfer the terms is contained in the printed part only, and should be disregarded, but there are no allegations in the complaint of any mistake in the agreement nor is any case made for a reformation of it. The making of it in the form in which it appears in the case is found as a fact, and the finding is not excepted to. The printed part of the agreement is not inconsistent with the written part, and we see no ground upon which we can disturb the finding and conclusion in respect to the agreement and its effect. The agreement as found being, not merely to transfer the leases, but the land and buildings, for the terms of the leases, the caséis distinguished from Boyd v. Schlesinger (59 N. Y., 301), and the general rule that specific performance of a contract for the conveyance of land or an estate therein will *522 not be decreed against the vendee unless the vendor can give a good title, is applicable. It being found that the leases were invalid, and that consequently the plaintiffs could not transfer a good title for the term thereby granted, the plaintiffs could not maintain this action. The question Avhether the defendant did or did not enter in possession under the contract is not material. It might be material if the action Were to recover possession of the property, but even if the fact Avere found in favor of the plaintiffs, it would not entitle them to specific performance, if they had no title ; nor would it in an action for specific performance preclude the defendant from objecting to the title, though he might be bound to surrender the, possession thus acquired. The fact however was found adversely to the plaintiffs and we do not find sufficient ground for holding the finding to be error. The claim that the defendant has himself cured the defects in plaintiffs’ title, by his purchase from Mrs. Adriance cannot be sustained. The title acquired from her was independent of and different from that which the plaintiffs undertook to convey, and in no manner aided that title, or cured any of the defects therein, but was hostile to it. The case is a hard one for the plaintiffs, but we see no way in which relief can be given them in this action. The judgment should be affirmed, but without costs. All concur. Judgment affirmed.