Wilkins v. Somerville

Watson, J. On January 16, 1902, a contract was made between the orator and the defendant Samuel Somerville by which it was agreed that the orator should pay the sum of six thousand dollars for that part of Somerville’s farm lying in Duxbury, containing his homestead, and that the deed thereof when made should be deposited with the Capital Savings Bank and Trust Company in Montpelier, in escrow, until that sum should be paid. The farm was believed by both to contain valuable'veins of asbestos and talc, and this they had in view in their. negotiations. On the same day a warranty deed of the property was duly executed by Samuel and his wife, the defendant Eliza M. Somerville, to the orator, and was deposited by the direction of-Samuel with the bank in escrow, but instead of the condition being pursuant to his agreement with the orator, he directed the depositary to hold the deed until six thousand dollars should be depositee1 .o his credit, or until called for by him or his attorney, after † urty days from date. [52] The orator neither consented to nor had any knowledge of any change in the condition, nor was he afterwards informed of it. Indeed never thereafter did Samuel make reference to the time the deed should remain in the custody of the bank, until September 19, when he wrote the orator that after thirty days he should think best to take it therefrom. Again October 6, he in like manner notified the orator that the date for withdrawing the deed was October 20, advising him that what he did must be done before then. In answer to each of these communications the orator protested against its withdrawal. Later Samuel extended the date to October 30, and the depositary notified the orator that unless payment be made by that time, the deed would be returned to the vendor. Thereupon the orator protested to the latter that under their agreement he had no right to recall the deed. On the day before the bank was • thus to return the deed an order was issued restraining it from so doing. On the same day Samuel and wife by their deed of warranty conveyed the land, together with land in Fayston, to the defendant .Mark Mears, who in making the purchase was cooperating with defendants George D. Mears, A. W. Slocum, and Mathew M. Gordon, it being understood and agreed between them that Mark Mears should furnish the money to pay for the property, hold the title, and transfer the same to a company to be formed by them. In this purchase the consideration to be paid was six thousand dollars, of which twenty-five hundred dollars was paid by check, with an agreement to pay the balance in sixty days. The deed to Mears was sent by him to the defend- and Eber Huntley, town clerk of Duxbury, for record. Soon thereafter this suit was commenced, with a temporary injunction holding the deed and the title to the property in statu quo. The vendor, when depositing the deed with the bank, undoubtedly was competent to annex such conditions to its delivery to the orator as he saw fit, even to the extent of retaining the right to withdraw it from the custody of the depositary at any time, or after a specified time. The fact that in so doing he violated the terms of his contract does not change the situation in this respect, nor give the deed an> force which it would not otherwise have. Stanton v. Miller, 58 N. Y. 192. No title could pass by it without a compliance with the conditions of the deposit. [53] It is clear that the orator cannot have adequate remedy by an action at law. In view of the conveyance of the property to a subsequent purchaser the question is, what relief will be granted in a court of equity? The contract is in its nature and incidents entirely unobjectionable. True it contained no specified time in which the condition of the escrow should be performed; yet there was no uncertainty in this respect, since by implication performance must be within a' reasonable time. Ordway v. Farrow, 79 Vt. 192, 64 Atl. 1116. It is found that such reasonable time had not elapsed October 30, 1902, the day finally named by the vendor for the withdrawal of the deed from the bank. Hence the conveyance of the property to Mears the day before was within the time in which the orator by his contract had a right to perform. Yet by that conveyance the vendor not only disabled himself from carrying out his prior contract, but he prevented its subsequent performance by the orator also. In these circumstances unless the rights of bona fide purchasers without notice intervene, equity requires that the orator be placed as nearly as possible in the same, situation as the vendor agreed that he should be in, — that he have a reasonable further time in which to perform the condition and receive a deed of conveyance of the property according to the terms of his contract. See Battell v. Matot, 58 Vt. 271, 5 Atl. 479; Ordway v. Farrow, before cited. But the subsequent purchaser Mears was not without notice. Before he took his deed he knew all concerning the deed to the orator and was put on inquiry as to the restraining order against the bank, issued the same day. Hence Mears, standing on the same equity as his vendor,- will be compelled to perform the contract with the orator by a conveyance of the land in the same manner and to the same extent as the vendor would have been- liable to do, had he not transferred the legal title. 1 Story, Eq. Jur. sees. 396, 784; Taylor v. Stibbert, 2 Ves. Jr. 438; Potter v. Saunders, 6 Hare 1; Champion v. Brown, 6 Johns. Ch. 398; Ten Eick v. Simpson, 1 Sandf. Ch. 244; Haughwout v. Murphy, 22 N. J. Eq. 531. This doctrine rests upon the general principle in equity that from the time of a contract for the sale of land, the vendor, as to the land, is considered a trustee for the purchaser, and the vendee, as to the purchase money, a trustee for the vendor. [54] And every subsequent purchaser from either, with notice, is subject to the same equities as would be the party from whom he purchased. 1 Story, Eq. Jur. see. 789; Taylor v. Stibbert, 2 Ves. Jr. 439; Ten Eick v. Simpson, 1 Sandf. Ch. 244. The prayer of general relief is sufficient. It is said in substance, however, that the bill does not show the orator ready and willing, nor that he offers, to perform. But since a case for specific performance has been made out in other respects, a court of equity will hesitate to deny such relief without an opportunity to the orator to move for leave to amend his bill. In the event of such relief being granted, we do not understand that damages are here sought by the orator in addition thereto. Whether in case he does not avail himself of specific performance any claim he may have for damages or for money expended may be here enforced by way of a lien on the property or otherwise, is a question on which we give no intimation. It sufficiently appears without further discussion that as far as the temporary injunction relates to the land in question it was properly issued to protect the orator’s equitable rights, in the premises; and with such modifications as may be necessary to the carrying out of the decree it should be made perpetual. Provided that if the orator fails to perform within the time limited, then the injunction should be dissolved for his failure to perfect his title, under the decree. To the extent that the injunction relates to other land, if at all, it was wrongfully issued and should be dissolved. Regarding such land the case will be proceeded with on the question of injunction damages if any are claimed. The defendant Huntley has no interest in the matters here litigated, he being made a party to the suit only for purposes of the injunction. Decree reversed and cause remanded with mandate. Let the costs below be there determined.