Dunckel v. . Dunckel

Earl, J. We are concluded by the finding of the court below that the defendant made the agreement to "give the life lease alleged by the plaintiff. Whatever doubt existed as to that agreement has been cleared up by the verdict of the jury and the findings of the trial court. One of the prerequisites to the specific performance of a parol agreement for the purchase and sale of land is that the agreement should be clearly proved and certain as to its terms. *434 But that is a rule to be observed and enforced in the equity courts which deal with the facts. When the agreement has there been found upon conflicting evidence, and is certain in its terms as found, it must be taken here as clearly established within the rule, and what was before uncertain has become certain. There is a further rule that the specific- performance o>f contracts rests largely in the discretion of the equity courts — not wholly, but in a discretion to be governed by rules which have become established for the guidance of such courts. That, again, is a rule to be generally administered in the equity courts. So far as they exercise their discretion, violating no fixed rules of equity, such discretion is not reviewable here. We have, therefore, only to determine now whether there was such part performance of the agreement found below as to take it out of the Statute of Frauds, and whether any errors were committed upon the trial affecting the judgment rendered. We think there was such an agreement partly performed as ought to be enforced. We must look at the situation as it existed when the agreement was made. At that time both parties supposed the estate of John A. Dunckel would prove insufficient to pay his debts. The defendant was fearful of his responsibility on account of his indorsements upon his son’s notes, and "wished to be relieved from all anxiety about them, and he proposed to the plaintiff that if she would pay those notes and save him harmless from his indorsements thereon he would give her the life lease, and she accepted the proposal and promised to pay the notes. It was then uncertain how much she would have to pay, and she took the risk as to the amount. The will of her husband had not then been proved, and she was under no obligation to take upon herself the burden of administering upon an estate then supposed to be insolvent. How, what did she do in pursuance of the agreement ? She had the will probated, and qualified as executrix thereof. She administered upon the estate and converted the *435 assets into money. She speedily paid all the notes, using for that purpose some of her own means. She fully protected the defendant against any liability on account of his indorsements, and she surrendered the notes discharged to him, and she remained in possession of the house under the agreement. It is thus seen that the amount of her own money paid upon the notes was not the only consideration moving from her for the lease to be given. There was also the risk and labor and the protection given to the defendant. If she should now fail to obtain the lease from'the defendant she could not recover back from them any of the money paid to the holders of the notes. The defendant has not offered to pay back any of it, and if she should attempt to enforce payment from him she would have the burden of establishing the disputed agreement, while he held the discharged notes, the most conclusive proof of the payments by her and the amounts thereof. To all this must be superadded the fact that for nearly three years she had the undisputed possession of the premises under the agreement. We think these facts are sufficient to authorize the specific performance of the agreement, and we know of no authorities holding that under such circumstances specific performance should be refused. The. authorities upon this subject are very numerous, and it would not be useful now to cite or comment upon them'. Many of them will be found in the learned briefs submitted to us upon the argument of this case. We think it is a general rule to be gathered from the authorities that mere payment of the purchase price of land is not sufficient to authorize the specific performance of the contract of sale unless the peculiar circumstances of the case be such that an action at law to recover back the money paid would not give the purchaser an adequate remedy. But it is also a general rule that when the consideration has been paid- and possession under the contract of’ sale has been taken, the contract will be specifically enforced, and to take the case out of this rule the circumstances must be peculiar and exceptional. This general rule is applicable to this case. *436 Upon the first trial of this action the jury answered in the negative the first two questions submitted to them in reference to the promise of the defendant that he would convey the premises to his son or his family, and in reference to the improvements to be made on the pz-emises by his son. The-findings of the jury in answer to those questions were adopted by the court and were not disturbed by the decision upon the first appeal. The defendant objected to the submission of those questions again to the jury upon the second trial, and to all evidence in reference to them, and his counsel now claims-that there was error in overruling those objections. The verdict of the jury answering those questions in the affirmative upon the second trial, and the findings of the court based thereon, were, as findings, entirely harmless, because no relief whatever was based upon them, and they in no way entered into or affected the judgment. But upon the first appeal to the General Term the judgment was reversed as to the agreement made by the defendant with the plaintiff subsequently to the death of her husband that he would give her the life-lease, and the whole case was thrown open for the trial of the-issue as to that agreement, and the introduction of any evidence bearing thereon. Hence, the situation and value of the premises, the circumstances attending their. purchase and subsequent possession, the improvements made thereon by the son, and the circumstances under which they were made, and the relation of all the parties to the premises were properly put in evidence as bearing upon the issue upon trial and the-general equities of the case, and particularly to show that it would not be inequitable to compel the defendant to perform his agreement with the plaintiff. A careful scrutiny of all the evidence satisfies us that no harmful or embarrassing evidence was erroneously received against tile defendant. The further objection is made that the judgment should have been in the alternative, requiring the defendant to give the lease or pay the $2,800 expended by plaintiff’s husband upon the premises for improvements thereon. The answer to-this objection is that there is no exception in the record which. *437 presents this point for our consideration. It does not appear that the defendant requested that the judgment should be in the alternative, and for aught that appears he may have assented to the form of the judgment. This is certainly a permissible view to take of the record, and we are the more willing to take it because the record shows that the plaintiff was willing to take in lieu of the lease what her husband had paid for improvements, and even upon the argument of this case her counsel stated that she Avas uoav Avilling to take the $2,800; and his offer, that the judgment might be amended in that respect if more acceptable to the defendant met with no response from his counsel. Our conclusion, therefore, is that the judgment should be .affirmed, with costs. All concur. Judgment affirmed.