Hayes v. Harmony Grove Cemetery

Chapman, C. J. The plaintiff, being the guardian of the minors named in the bill, was duly authorized to sell the real estate in question at auction, and proceeded regularly in making the sale. The defendants, by their agent, bid it off; and are bound to the specific performance of their contract, unless there is some defect in the title. The general rule is, that, in order to maintain a bill for specific performance, the plaintiff must prove that the title is good beyond a reasonable doubt. Richmond v. Gray, 3 Allen, 25. Sturtevant v. Jaques, 14 Allen, 523. The subject is fully discussed in Sugd. Vend. (14th ed.) c. 10, § 3, and the principal authorities are there cited. The general rule in England is as stated above; but it has also been held that mere possibility or suspicion of defect is not sufficient to release the vendee. See Lowes v. Lush, 14 Ves. 547; Franklin v. Brownlow, Ib. 550; Pyrke v. Waddingham, 10 Hare, 1. Questions may arise in respect to the title, which must depend upon circumstantial evidence ; as for example, questions of legit imacy; and after such questions are settled beyond a reasonable doubt, there is still a possibility of a defect. Yet this possibility is disregarded. Sometimes the court will presume the surrender of a term, or the discharge of a mortgage, in favor of the validity of a title. Emery v. Grocock, Mad. & Geld. 54. Cooke v. Soltau, 2 Sim. & Stn. 154. In this case, there is no question as to the validity of John Hogan’s title. He died seised, in November 1863, leaving a will by which he devised the land to his wife; and this will was proved. She died seised, in 1869, leaving these minors as the oily heirs of herself and their father. Their present title is [403] therefore good. But nothing was done under John Hogan’s will; nor was any administration taken of his estate till after it was objected by the defendants that, if there should be debts against him, this land might be responsible for their payment. Therefore the plaintiff, in January 1871, took out administration on his estate, and gave the proper notice, so that this possibility will be extinguished by the statute of limitations in January 1873, unless enforced prior to that time. Nor was any administration taken upon the estate of his widow, till December 1870. Notice was then given, which will extinguish the possibility of loss from her debts, not previously enforced, in December 1872. Whatever assets the plaintiff may receive from the defendants, he must apply to the payment of such debts, if any exist against either the father or the mother. But there is no evidence tending to raise even a suspicion that any debts exist against the estate of either the father or the mother: and therefore there is only a possibility of loss on that ground. It is suggested, moreover, by the plaintiff, that, as half of the purchase money is, by the terms of the sale, to be secured by mortgage, which is to remain unpaid for a reasonable time, the defendants will have ample security in their hands to protect them against this possibility. As we do not think there is any reasonable doubt about the title, under all the circumstances stated in the report, we think this suggestion of the plaintiff points out an ample security against all possible loss. By giving a note not negotiable, the defendants may compel the holder of the note and mortgage to apply upon it any money that they may be held to pay for any debts that may possibly be chargeable upon the estate. Decree for the plaintiff; the defendants not to he required to give a negotiable note for the balance which is to be secured by mortgage. »