Troy v. Clarke

By the Court, Shafter, J.: Bill for specific performance. Clarke bound himself by a written agreement, dated June 18th, 1863, to convey to the plaintiff an undivided half of certain lands situate in the County of Santa Clara, for the sum of six thousand seven hundred and fifty dollars—five hundred dollars whereof was to be paid on the 1st day of September, 1863, and the balance in five equal annual instalments, payable respectively on the 1st day of September of each year thereafter, with interest at ten per cent per annum, payable annually. Clarke also agreed to convey the other moiety of the premises to plaintiff so soon as it should be judicially determined that he was the owner thereof, for two thousand two hundred and fifty dollars, in four equal annual instalments, payable respectively, in one, two, three and four years from the date of such decision. [424] The cause was tried by the Court. Findings and judgment for the defendant. The appeal is from the judgment. First—We do not consider that there are any admissions in the answer entitling the plaintiff to a reversal of the judgment. No defect in the findings can be relied on as a ground of reversal, for no exception was taken to them under the Act of 1861. On the facts as found and stated affirmatively there can be no question as to the correctness of the judgment. Not only had the plaintiff failed at the commencement of the action to pay the first instalment due on the contract and without justification or excuse, but by the very terms of the contract the defendant was not bound to convey until all the instalments should be paid with accruing interest and taxes and the last instalment would pot become due until September, 1868. Nor on the facts is the plaintiff entitled to be restored to the possession. The right of possession is not in him. He was turned out under an execution issued on the judgment recovered in the action of ejectment brought by Clarke against him prior to the contract to convey, and Clarke was put in possession by the officer; nor is there anything disclosed in this record showing that the relations of the parties to each other and to the lands have been changed since that time in any legal particular. Second—The plaintiff failing to maintain his claim to specific relief on the findings insists that he is at least entitled to compensation in damages for certain personal property on the premises which the defendant converted to his own use. It may well be questioned whether damages for the alleged conversion could be awarded in this proceeding, inasmuch as the title of the plaintiff to the principal relief prayed for has failed. (2 Sto. Eq., Chap. 3 9.) But passing the point as one not necessary to be decided here, it is sufficient to say that on the face of the findings the plaintiff has sustained no appreciable damage. It is found that the hay grown upon the premises in 3.864, and alleged to have been converted, was worth twenty dollars per ton, but there is no finding of the [425] amount so grown. As there was no exception taken to the findings as defective, it must be presumed that there was an entire failure of evidence on the question of the amount of hay converted, or if evidence was given on that point, then that the amount was so inconsiderable as to fall within the rule de minimis. Judgment affirmed.