Pratt, J. This is an equity action praying for a specific performance of a contract for the sale of real estate in the county of Orange. Various defenses are interposed; but the trial judge has found, upon sufficient evidence, that there is no merit in the defense, and has written an opinion that covers the whole case.
It is evident from a careful perusal of the testimony that the defendant did not intend in good faith to carry out his contract on the day specified for passing the title, and that he resorted to all means in his power to defeat the rights of the plaintiff under the contract. He claims that time was of the essence of the contract, and that on the day specified the title was not perfect, and hence he should be relieved from performance.
The objection that there were mortgages existing upon the premises was not valid, as money could be substituted for the mortgages, or deduction made from the purchase money. Besides, the defendant well knew of the existence of the mortgages, and that they were to be paid off by a part of the money to be paid on that day. Good faith required him to give notice, if he intended to rely upon that fact to refuse title.
It is clear, however, that time was not the essence of the contract; and the evidence plainly showed that no change had taken place in the circumstances of the defendant which rendered a specific performance inequitable.
The objection that there was an incumbrance existing upon the property, in the shape of an obligation to maintain a fence, is too trivial to require notice; but, assuming it was a technical incumbrance, the change of circumstances arising from the fact that the growth of the city, so as to make this property within the limits of that part of the city laid out into public streets, rendered it so improbable that any fence could or would ever be required that it could form no substantial objection to the title.
It is also answered by the fact that compensatory damages could be allowed for such defect. Smyth v. Sturges, 108 N. Y. 495, 15 N. E. Rep. 544. The same rule will apply to the suggestion that the title is bad for the reason that there is a right of way in favor of the public along the westerly and southerly sides of the premises, if any such claim existed. We think, however, that the trial judge was right in holding that no such claim existed.
The court below, in its opinion, has discussed this question fully; and we concur in the views therein expressed. The land described in the contract was by streets and avenues, and as being the “same lands and premises purchased by me of Mrs. Ida Corwin; and how there could be failure of title as to quantity, without showing that some party other than Mrs. Keating owned a portion of that lot, cannot be readily seen.
The fact that the fence had been set upon the lot, or that telegraph poles had been set thereon, without showing that some person claimed some right or title to the land, was immaterial. We are forced to the conclusion that the defense was without merit, and that the judgment must be affirmed, with costs.
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