Harriman v. Tyndale

Knowlton, C. J. The parties submitted the demands of the plaintiffs against the defendant under a writing which the plaintiffs contended gave them a right to specific performance of a contract for the sale of real estate, and all other demands of either party against the other, to arbitration under the E. L. c. 194. The arbitrator made a report in favor of the plaintiffs and reserved certain questions of law for the court. Exceptions also were taken in the Superior Court. It is necessary now to consider only the questions argued by the defendant at the hearing in this court. The contract relied on was for the sale of real estate, and it entitled Marcus, with whom it was made, to a good title to the [539] property if he complied with the conditions as to payment. Mansfield v. Hodgdon, 147 Mass. 304. O’Brien v. Boland, 166 Mass. 481. The plaintiffs have succeeded to all rights which Marcus had under this contract. The first payment of $1,000 was made by Marcus under the agreement, and the second payment of $4,000 was tendered when it became due. The refusal of the defendant’s testator to receive it, with his statement of his willingness to accept the money and carry out the agreement on the removal of the injunction, and his promise to Marcus to let him know as soon as the injunction was dissolved and he was free to make the conveyance, absolved Marcus from the duty of making or tendering payments until he should receive further information from the testator. The subsequent knowledge of Harriman that the injunction had been dissolved, obtained while he was acting officially in an independent capacity as the assignee in insolvency of Julia K. Dyer, did not affect the rights of Marcus in this particular. As the plaintiff Jennings has a conveyance of all Marcus’s rights from the trustee in bankruptcy of Marcus’s estate, his claim here is as good as Marcus would have had if he had not become a bankrupt. The previous conveyance of the claim by Marcus to Mr. Harriman, to be held as collateral security for a debt, leaves Marcus’s representative with a right to have it treated in this proceeding as if no such conveyance had been made, except that the proceeds of it are applicable in the first instance to the payment of Mr. Harriman’s debt, for whose security it is held. The fact that a deed for the equity of redemption was given by Fitzgerald for the special purpose of promoting a settlement of the claim for damages against the city of Boston, which deed was never recorded, did not operate as a waiver and discharge of Marcus’s rights under the contract. It is at most a part of the evidence in the case. We come now to the most important question before us, namely: Whether the arbitrator might find that the plaintiffs were entitled to specific performance as against the defendant. In considering this question we are to treat the case as if the defendant had not settled his suit against Walter R. Dyer, the holder of the title; for there is a stipulation of the parties that the matters submitted are to be determined by the arbitrator as if “ none of the above-mentioned suits or actions (including this [540] suit) had been terminated or dismissed subsequent to the date of said submission.” The arbitrator has found facts which show that if this suit had not been settled by a payment of money, the defendant would have been entitled to a conveyance of the real estate from Walter R. Dyer, who held it by a title fraudulent as against the testator’s creditors, with full knowledge of the facts on which the present plaintiffs’ claims are founded. A master’s report had been made in favor of the plaintiffs. If the suit had been prosecuted to a final decree and a conveyance had been made under the decree, the defendant would have been in a position which would have enabled him specifically to perform the contract relied on by these plaintiffs. We are to decide the question as if the defendant’s rights had not been changed by a settlement of the suit to obtain the property from Walter R. Dyer and by a substitution of money for real estate which this defendant otherwise would have obtained. Previously to his death the defendant’s testator had controlled the title, and had caused it to be conveyed to his son Walter R. Dyer to be held for his benefit. The defendant, representing the testator and his creditors, could control it after his appointment. It is immaterial that the testator’s title was imperfect when the contract was made; if it became adequate before the time for the decision in this case. It is a vendee who is seeking performance, and not a vendor proceeding against a vendee who has declined to accept the property because the title was not good. The objection, therefore, that the defendant had not such a title as was necessary to warrant a decree for specific performance, cannot prevail. Dresel v. Jordan, 104 Mass. 407, 414, 415 and cases cited. Richmond v. Gray, 3 Allen, 25. Barnard v. Lee, 97 Mass. 92. In the agreement for arbitration the parties stipulated that if the arbitrator awards damages, judgment on the award shall have the same effect as is provided by R. L. c. 142, § 30, in the case of a judgment against the insolvent estate of a deceased person.- The arbitrator has accordingly awarded that Mr. Harriman shall be paid from the estate of Micah Dyer the sum of $16,353.64 as a preferred claim. The estate was insolvent, and it was not within the power of the administrator de bonis non with the will annexed to stipulate, as between different classes of creditors, that a claim of this kind should be allowed as a pre [541] ferred claim under the R. L. c. 142, § 30. It was a claim for a conveyance of real estate, and if the real estate was turned into money by an agreement of the parties, with a stipulation that this claim should stand against the fund, to be paid from it in money, the fund is properly chargeable in equity with the damages which are allowed. R. L. c. 148, § 1. Root v. Blake, 14 Pick. 271. Boyd v. Soule, 8 Gray, 554. Perhaps it is to be assumed that, in the settlement of the suit against Walter R. Dyer, the defendant received, on account of the real estate, a sum as large as the amount here found in favor of the plaintiffs. If so there is no question that the fund so obtained is chargeable with the payment of the full amount of this award, and in this sense the award may be called a preferred claim. If there is a deficiency in this fund, what rights these plaintiffs will have to other property of the estate, as against other creditors, preferred or unpreferred, cannot be determined in this case. Judgment affirmed; exceptions overruled.