Worch v. Woodruff

Pithey, Y. C. Several special causes of demurrer are assigned, but they may be considered as two. Pirst, that the description given in the demand for a conveyance of a part of the premises is not sufficiently explicit. In estimating the value of this point it must be borne in mind that the farm was bounded on the north and south by public highways—the road from Salem to Union was on the north side, and the road from Morris avenue to Irvington was on the south side. The description given is of a portion of the land lying on the north side of the latter road, and it is a strip extending the entire length of the farm along that road, and is fifty feet deep for a portion of the distance, viz., commencing on the western boundary of the land, and running from there easterly, of course, to a point twenty feet westward of where a dwelling-house is situated. I think that point—“twenty feet to the west of where a dwelling-house is situated”—is sufficiently determined. It would be ascertained by measuring twenty feet parallel with the road westerly from the most westerly portion of the house, and dropping a line from that point perpendicularly to the road. Prom that point east the tract taken is one hundred and fifty feet in depth, measured from the road. It is suggested that there may be more than one dwelling-house on the premises. It is not so stated in the bill, and I thinlr there can be no presumption of that kind; but, if there were,, the depth of fifty feet would stop at the first dwelling-house-which is reached, commencing at the westerly boundary of tliefarm. It must be recollected in this connection that the presumption-is that the muniments of title of the farm are in the possession) of the.defendant, and he will be assisted in locating the land by the use of those conveyances. I think that an ordinary land' surveyor will have no difficulty in locating the tract on the-ground. Whether the depths of fifty and one hundred and fifty [82] feet, respectively, shall be measured from the side or center of the road is a matter depending on the true construction of the contract, and if the parties differ it is to be settled by this court. Eor these reasons I am of the opinion that the description of the land to be taken is on its face sufficiently definite. The next objection is that the quantity of the land is not stated, and presumably was not ascertained by the complainants at the time of making the demand, and that the ascertainment of the quantity was a prerequisite to a demand of the conveyance, because the amount of purchase-price to be paid could not be otherwise ascertained. But I think the maxim id cerium est quod cerium reddi potest applies to this and the former objections. But still demurrant insists that it was a condition precedent to demanding a conveyance that the complainants should ascertain the quantity of land, and from it the amount of money to be paid, and that the statement of the offer to pay the money is insufficient because it does not state the amount which was offered. The arguments of the complainants in answer to this position are—first, that naturally it is the duty of the vendor to ascertain and fix the amount of the price, where it remains to be fixed by any kind of measurement; second, that the avermént of an offer to pay is sufficient in this case because the complainants state in their bill that they offered to pay the purchase-price, which means the amount which the defendant might justly state to be due him; and third, that by the bill it appears that the defendant’s refusal to perform was general, and not based on any failure of complainants to ascertain, on their own account without the aid of the defendant, the quantity of the land or the amount of money to be paid; and the complainants urge that it was the duty of the defendant either to ascertain for himself the quantity, or to propose, what is quite usual in such cases, a joint survey and measurement. I think that the complainants have the better of this argument. But of both of defendant’s points it is to be remarked that he seems to be standing on the very apices liiigandi. I think it {quite clear that the fixing of the precise quantity of the land [83] and of the purchase-price was not a condition precedent to the complainants’ right to commence their suit for specific performance of the contract. Those matters, as well as the determina- . tion of the sufficiency of the deed and its execution, naturally belong, under the practice in suits for specific performance, to proceedings in the master’s office, after bill filed and answer, if any, and after the question of the right to the specific performance of the contract is settled. According to the English practice, where the suit is by vendor against vendee, the question whether the complainant can make a good title is referred to a master; also in all cases the precise amount of purchase-price, according to the contract, if that amount is not, as here, settled by the contract; also the question of interest and mesne profits, and the verbiage of the conveyance. The practice will be found referred to in Dan. Ch. Dr. (5th ed.) *988, *992, *1215, *1221;. also, see Seton Dec. (ed 1881) 209, 212, with notes. To illustrate: Suppose, in this instance, the complainants had employed a surveyor to survey this land, and had, on his report, fixed the acreage at so many acres and so many hundredths of an acre, and had demanded a conveyance of that, and had tendered the price fixed on that basis, all in good faith, and suppose the defendant had made an independent survey, and his surveyor had reported a greater quantity of land than the complainants’ surveyor, and, the parties not agreeing, complainants should file a bill, and at the hearing it should be determined that the defendant’s surveyor was right and the complainants’ surveyor wrong, would the complainants, in the absence of bad faith, thereby lose their right to a specific performance? I think there can be but one answer to that question—they certainly would not. So, if a dispute should arise as to the sufficiency of the deed ’ of conveyance offered; if the complainants should make improper objections to the form or execution of the deed, and refuse to accept it, and file their bill, and at the hearing t¡he defendant should be held to be right, it would not necessarily follow that the complainants would lose their right to specific performance. [84] Or, again, suppose the suit be by the vendor against the vendee, and the written contract provides that the vendor should convey •free and clear of encumbrance, and there should be a mortgage upon the premises which the vendor expected to pay out of the purchase-money, and he should appear at the time and place fixed for the performance, with the mortgagee or his attorney, ready to receive the money and cancel the mortgage, could the vendee set up, in defence to a suit for specific performance, that the vendor failed to pay the mortgage and have it canceled before the moment of passing the title ? In short, the objections set up by the defendant by way of demurrer are all mere matters of detail which, if not previously amicably arranged between the parties, are to be determined by the court in the progress of the suit; and if the complainants' action has been in good faith they will not lose their right to specific performance by having made a mistake in any of these details, but compensation for delay to the defendant may be made by way of payment of interest, and the complainants may be punished for any such mistakes by being refused their costs. So, with regard to the offer to pay at the time and place fixed, I do not understand that in a suit by vendee against vendor the vendee must, as a condition precedent to the right to maintain his suit for specific performance based on a contract in the ordinary form, make an actual tender of lawful money, such as would sustain a plea of tender in an action at law. It is sufficient if he was ready and willing to pay at the time and place, if any, fixed, after having inspected, and being satisfied with the deed of conveyance offered by the defendant. For these reasons I will advise that the demurrer be overruled, with the usual results, and upon the usual terms.