Belrose v. Baker
| Decision Date | 23 February 1981 |
| Docket Number | No. 79-390,79-390 |
| Citation | 426 A.2d 454,121 N.H. 48 |
| Parties | Felice M. BELROSE v. Philip G. BAKER. |
| Court | New Hampshire Supreme Court |
Maynard, Perkins & Phillips, Concord (William Maynard, Concord, on the brief), by brief for the plaintiff.
Flynn, McGuirk & Blanchard, Portsmouth (John P. McGee, Jr., Portsmouth, on the brief), by brief for the defendant.
This is a petition for specific performance of a purchase and sale agreement under which the plaintiff, Felice Belrose, agreed to convey certain real estate to the defendant, Philip G. Baker. A trial was held before a Master (Robert A. Carignan, Esq.) who recommended that specific performance be decreed, and the Superior Court (Batchelder, J.) approved the master's recommendations. The defendant then filed a notice of appeal in this court.
On November 6, 1975, the plaintiff and the defendant entered into an option agreement on certain real estate in Bow. Under its terms, the option was for one year and was given in consideration of the sum of $2,150. The total purchase price of the land was to be $43,000 with the defendant to receive a credit for the cost of the option, $2,150. Another provision in the agreement provided that the defendant could renew the option for an additional year upon payment of an additional $2,150 and provided that he exercised this right to renew before the term of the first one-year option expired.
On November 10, 1976, intending to renew the option, the defendant tendered the plaintiff a check for $2,150. The plaintiff, however, rejected the tender as being untimely. Each party brought suit against the other and a settlement of these actions was reached just before the cases were to be tried. Under the terms of the settlement, which had been hastily reduced to a handwritten agreement, the plaintiff, who once again agreed to sell the real estate to the defendant, received $2,150, the sum provided for renewal in the original option agreement, and penalty payments in the amount of $4,000. The penalty payments were not to be credited against the agreed-upon purchase price of $43,000. Closing was to take place on November 1, 1977, and the parties agreed that interest at 8.5% would accrue to the plaintiff from that date should the closing be delayed.
Prior to November 1, 1977, the defendant completed a title search on the property which revealed that, in 1961, the plaintiff had granted the Concord Natural Gas Corporation an easement to bury natural gas lines on the property, parallel to and within ten feet of Route 3-A, which borders the plaintiff's land on the west. On November 1, 1977, the defendant's attorney notified the plaintiff's attorney that the easement rendered the land unmarketable and unsuitable for the defendant's use and that the defendant would not take title to the property.
In February 1978, the plaintiff filed this petition for specific performance. After trial, the Master found that the defendant had been aware of the easement since 1975, but had "continued to dangle the carrot in front of the plaintiff in order to tie up the property." The master further found that the easement did not affect the marketability of the property. The defendant was ordered to specifically perform the agreement and to pay the plaintiff the sales price of $43,000 plus 8.5% interest on that amount from November 1, 1977 to November 1, 1979, a total of $7,310 in interest. In addition, the defendant was ordered to pay the plaintiff the interest expense on a loan obligation she had incurred in order to acquire a new residence, because under the terms of the agreement she had to vacate the property on November 1, 1977, and could no longer live there. The master found this additional interest expense to be a direct result of the defendant's breach.
The granting of specific performance to enforce a legal right is a matter within the sound discretion of the trial court. Johnson v. William P. Korsak, Inc., 120 N.H. ---, ---, 415 A.2d 1141, 1143 (1980); Wehringer v. Bullen, 120 N.H. ---, ---, 417 A.2d 1, 2 (1980). In cases involving real estate, "specific performance will be decreed unless there are circumstances which make it inequitable or impossible to do so." Johnson v. William P. Korsak, Inc., supra at ---, 415 A.2d at 1143; see Hanslin v. Keith, 120 N.H. 361, 364, 415 A.2d 329, 331 (1980). The defendant argues that the title to the real estate here is unmarketable and that therefore specific performance would be inequitable. We disagree.
In this State, marketable title is defined as a title "free from reasonable doubt in law or in fact; ... one which can be readily sold to a reasonably prudent purchaser or mortgaged to a person of reasonable prudence ... (and one) free from any reasonable objection of a reasonable purchaser." Paradis v. Bancroft, 97 N.H. 477, 479, 91 A.2d 925, 926 (1952). The existence of an easement granted to a public utility of the nature and scope involved here does not constitute reasonable grounds for objecting to the title of the land in question. The intrusion is slight, the pipes are buried, and many municipalities have zoning setback requirements that exceed the...
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