Handy v. Rice

• Decision Date: 24 March 1904
• Citation: 57 A. 847,98 Me. 504
• Parties: HANDY v. RICE et al.
• Court: Maine Supreme Court

57 A. 847

98 Me. 504

HANDY

v. RICE et al.

Supreme Judicial Court of Maine.

March 24, 1904.

(Official.)

Appeal from Supreme Judicial Court, Penobscot County, in Equity.

Bill by Clarence P. Handy against James Rice and another for specific performance. Decree for plaintiff, and defendants appeal. Dismissed, and decree affirmed.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, POWERS, PEABODY, and SPEAR, JJ.

Hugo Clark and J. D. Rice, for appellants.

E. C. Ryder, for appellee.

WHITEHOUSE, J. This is a bill in equity to enforce the specific performance of an agreement to convey real estate.

By the terms of the bond the plaintiff, a resident of Aroostook county, agrees to pay to the defendant, James Rice, a resident of Bangor, "seventy dollars Dec. 1, 1899, fifty dollars July 1, 1900, fifty dollars January 1, 1901, fifty dollars July 1, 1901, and fifty dollars Jan. 1, 1902, with interest on the whole at 12% until paid, agreeably to his five notes of even date herewith." And in consideration thereof the defendant, James Rice, agrees that, "after the payment of said sum before or at the time the same shall become due as aforesaid," he will upon request convey to the plaintiff certain real estate in Molunkus, in the county of Aroostook, "by good and sufficient deed thereof, including release of dower."

The case comes to this court by appeal from the decree of a single justice, with a report of all the evidence. The case also presents a statement of the findings of fact and of the special rulings of the court below, as follows:

"July 7, 1899, the defendant, James Rice, living in Bangor, gave to plaintiff a bond for a deed for the land in Molunkus described in the bill, and the plaintiff gave the defendant, James Rice, the notes described in the bond. The plaintiff thereupon moved on the land, and has since occupied it as a homestead. At the time of executing these papers, Rice told the plaintiff that he might pay the money on the notes to Joseph Davis, who lived in Chester, and who had some care of some of Rice's interest in that vicinity.

"When the first note was due, the plaintiff went to Davis and asked for the note, and paid the amount, with interest, and took it up. When the second note fell due it was not paid at maturity, but a few days afterwards, July 12th, the plaintiff paid $25 on the note to Davis, and had the indorsement made by Davis, and agreed to pay the balance in a month or so. He did not pay the balance, however, till December 27th, when he paid it to Davis and took up the note. In the meantime he had been dunned by Rice for the balance, and had been notified that unless paid at once a forfeiture would be insisted on, but no steps were taken to eject him from the premises, nor was he then explicitly notified that no more payments would be received. Mr. Davis sent the amount to Mr. Rice.

"On January 1, 1901, the plaintiff went again to Davis and desired to pay the note then due, and also to pay all the unmatured notes, claiming that by the terms of the bond he could do so and acquire a right to a deed. Mr. Davis said he did not have the notes, but would send for them. The plaintiff insisted, however, that he take the money, which he finally did—the full amount of all the remaining notes, with interest up to that day—giving a receipt. The plaintiff had never been informed that Davis' authority was revoked. This money Davis sent to Rice with letters of explanation. Rice returned this money, and also the balance of the second note, which had been paid December 27th to Mr. Davis, with the instructions to return the whole to the plaintiff. He retained, however, the remaining notes of the plaintiff, and has never offered to return them until the hearing, when he asked leave to amend his answer, and offered to return the notes. Davis offered to repay the money to the plaintiff, but the plaintiff refused to receive it. Subsequently, at some date not stated, Davis deposited the amount in the Savings Department of the Eastern Trust & Banking Company to his own personal credit.

"During these events Mr. Rice conveyed the land to his son, the other defendant, by a deed not yet recorded, but his son had full knowledge of all the events.

"Upon these facts, I rule (1) that no for feiture was incurred by the plaintiff; (2) that his payments to Davis were under the circumstances payments or tenders to James Rice; (3) that, though James Rice may still have a personal claim for interest on the unmatured notes up to their maturity, the tender of the amount accrued at that date, January 1, 1901, entitled the plaintiff to a deed under the terms of the bond, and is entitled to a conveyance from both defendants according to the term of the bond; (4) that the plaintiff is entitled to costs."

The final decree provides "that said James Rice and Frank X. Rice shall make, execute, and deliver to said Clarence P. Handy a deed of quitclaim, with special covenants of warranty against incumbrances created by them, of the premises described in the bill of complaint, including the release of dower or title by descent by the wives of said James Rice and Frank X. Rice, within fifteen days from the date of filing this decree, in accordance with the terms of the bond."

It is a settled rule in the equity practice of this state that the decision of a single justice upon matters of fact in an equity hearing will not be reversed unless it clearly appears that such decree is erroneous, and the burden to show the error falls upon the appellant Young v. Witham, 75 Me. 536; Berry v. Berry, 84 Me. 542, 24 Atl. 957; Hartley v. Richardson, 91 Me. 424, 40 Atl. 330.

A careful scrutiny of all the evidence reported in the case at bar fails to show that the findings of fact above stated were "clearly erroneous"; on the other hand, it satisfactorily appears that they were correct.

The conclusions of law deduced by the justice below would seem to follow naturally and necessarily from his findings of fact.

It is a well-established principle in equity that the obligee in a bond for the conveyance of real estate, containing the usual provision that the bond shall be void upon the execution of a deed of the property, cannot be compelled to accept the amount of the penalty named in the bond in full discharge of the obligation, but upon compliance with the conditions on his part is ordinarily entitled to a specific performance of the bond as...