Heller v. Cohen

• Decision Date: 23 November 1897
• Citation: 154 N.Y. 299,48 N.E. 527
• Parties: HELLER et al. v. COHEN.
• Court: New York Court of Appeals Court of Appeals

154 N.Y. 299

48 N.E. 527

HELLER et al.

v.COHEN.

Court of Appeals of New York.

Nov. 23, 1897

Appeal from supreme court, appellate division, First department.

Action by John H. Heller, Jr., and William S. Heller, as executors of John H. Heller, deceased, against William Cohen. From a judgment of the appellate division (41 N. Y. Supp. 214) reversing a judgment of the special term, and directing a judgment absolute in favor of plaintiffs, defendant appeals. Reversed.

George F. Danforth, for appellant.

A. Stern, for respondents.

MARTIN, J.

On the 4th day of December, 1893, the parties to this action entered into a contract for the purchase and sale of certain real estate in the city of New York. The plaintiffs, in consideration of the sum of $100,000, $5,000 of which was paid at the execution and delivery of the agreement, and the remainder to be paid on the delivery of the deed on or before the 1st day of February, 1894, agreed to sell to the defendant certain premises, which were described therein as follows: ‘Beginning on the southerly side of Grand street, at a point distant seventy-five feet eleven and one-half inches westerly from the corner formed by the intersection of the southerly side of Grand street with the westerly side of Chrystie street; running thence southerly one hundred and twenty-five feet one inch; thence westerly, parallel, or nearly so, with Grand street, twenty-five feet one inch; thence northerly one hundred and twenty-five feet and three inches, to the said southerly side of Grand street; and thence easterly, along said southerly side of Grand street, twenty-five feet, to the point or place of beginning,-be all said several distances and dimensions more or less. The premises hereby intended to be conveyed being now known and designated as and by the street number two hundred and forty-five Grand street, as now built upon and inclosed, together with all fixtures in said premises belonging to the parties of the first part.’ At the time named, the plaintiffs tendered to the defendant a deed of the premises described in the agreement, which he refused to accept. He declined to accept the title offered upon the grounds (1) that the description of the premises in the conveyances through which the plaintiffs claimed title was indefinite and insufficient to convey the premises described in the agreement; (2) that in 1867 they were sold under a decree in partition, and purchased by the plaintiffs' testator, but that the referee appointed to make such sale, without authority, changed the description in the deed he gave, so that it did not conform to that contained in the complaint, and hence the deed was invalid; and (3) that a survey of the premises disclosed that they commenced 11 1/2 inches west of the point mentioned in the deeds to the plaintiffs' testator and his grantors, immediate and remote, and therefore the deed tendered did not convey the whole of the premises agreed to be purchased, and also included land to which the plaintiffs had no title. Subsequently, this action was commenced to compel a specific performance of the agreement by the defendant. It was defended upon the ground that the plaintiffs could not give a good or marketable title to the premises. On the trial at special term, it was held that the title offered was not a marketable one, for the reasons: First, that from 1810 to 1867 the premises had been described in the various conveyances through which the plaintiffs claimed title, as commencing at a distance of 75 feet from the northwest corner of Chrystie and Grand streets, while the description in the contract commenced at a point 75 feet 11 1/2 inches from the southwest corner of Chrystie and Grand streets; second, that such conveyances did not locate the premises with sufficient certainty to properly identify them; and, third, that, although the deed to the plaintiffs' testator correctly described the premises, it was unauthorized and invalid, and hence the plaintiffs acquired no title to the property described in the agreement between the parties. The court also held that, if the defendant was compelled to take a deed of the land described in the contract, it would include nearly one foot of land on the western boundary, to which the plaintiffs had shown no record title. The special term dismissed the plaintiffs' complaint on the merits, and granted a judgment in favor of the defendant for the sum of $5,000, which he paid upon the execution of the contract, with interest from the 4th day of December, 1893, and also for the sum of $250, counsel see for examining the sum of $250, counsel fee for examining the From this judgment the plaintiffs appealed to the appellate division. That court reversed it, and directed a judgment in favor of the plaintiffs for the relief demanded in the complaint, with costs of the trial and upon the appeal. The validity of that judgment is to be determined here.

The decision of the appellate division, so far as it directed the entry of a judgment in favor of the plaintiffs, was clearly unauthorized. Upon reversing a judgment, that court must grant a new trial, unless it is manifest that no possible proof applicable to the issue could entitle the respondent to recover. It must affirmatively appear that he cannot succeed upon a new trial. That it is improbable is not sufficient. Foot v. Insurance Co., 61 N. Y. 571;Goodwin v. Conklin, 85 N. Y. 21, 26;Capron v. Thompson, 86 N. Y. 418, 421;Guernsey v. Miller, 80 N. Y. 181. Obviously, the appellate division had no authority to direct a judgment absolute against the defendant. Consequently, it follows that, in any event, a new trial should be granted.

But, beyond that, the question is presented whether the defendant was not entitled to the relief granted by the special term. If so, then the judgment entered upon the decision of the appellate division must not only be reversed, but the judgment of the special term should be affirmed as well. This court has so recently and in so many cases examined the question as to the circumstances under which specific performanceof a contract for the sale of land will be decreed, and stated the principles of law which should control in such actions, that any extended discussion of those questions is quite unnecessary at this time. We need only to state briefly the rules established by this court, which we deem applicable to this case: (1) A purchaser at a judicial sale will not be compelled to take a doubtful title, and where irregularities or defects exist in the proceedings upon which the title rests, that require further or other action to cure them, and so prevent a performance of the contract of sale by the vendors at the time fixed, the objection of the purchaser, based upon the existence of those defects, should not be overruled, but he should be relieved from his contract. Toole v. Toole, 112 N. Y. 333, 19 N. E. 682. (2) Where a vendee seeks to rescind a contract for the sale of real estate on account of defect of title, the question as to the materiality of the defect is one of fact, when it depends upon and is an inference to be drawn from circumstances. Stokes v. Johnson, 57 N. Y. 673. (3) To entitle a vendor to specific performance, he must be able to tender a marketable title. A purchaser ought not to be compelled to take property, the possession of which he may be obliged to defend by litigation. He should have a title that will enable him to hold his land free from probable claim by another, and one that, if he wishes to sell, would be reasonably free from any doubt which would interfere with its market value. If it may be fairly questioned, specific performance will be refused. Vought v. Williams, 120 N. Y. 253, 257,24 N. E. 195;Shriver v. Shriver, 86 N. Y. 575, 584;Fleming v. Burnham, 100 N. Y. 1, 2 N. E. 905. (4) So, where there is a defect in the record title which can be supplied only by resort to parol evidence, and the title may depend upon questions of fact, the general rule is that the purchaser will not be required to perform his contract. Irving v. Campbell, 121 N. Y. 353, 24 N. E. 821;Holly v. Hirsch, 135 N. Y. 590, 598,32 N. E. 709. (5) The right of specific performance by a decree of a court of equity rests in judicial discretion, and may be granted or withheld upon a consideration of all the circumstances, and in the exercise of such discretion. Miles v. Iron Co., 125 N. Y. 294, 297,26 N. E. 261;Seymour v. Delancey, 6 Johns. Ch. 222;Margrat v. Muir, 57 N. Y. 155;Gotthelf v. Stranahan, 138 N. Y. 345, 351,34 N. E. 286;McPherson v. Schade, 149 N. Y. 16, 21,43 N. E. 527.

The only title the plaintiffs' testator had to 100 feet of the premises in question was under a deed made by a referee in a partition action between the then owners of the premises. The premises sought to be partitioned in that action, so far as they included the land in question, were described in the complaint as follows: ‘All that certain lot, piece, or parcel of ground, with the buildings thereon erected, situate, lying, and being in the Tenth ward of the city of New York, beginning at the distance of seventy-five feet from the northwest corner of Chrystie (formerly First) street, on Grand street, and runs south one hundred feet, more of less, to Isaac Berrian's ground, by a straight line; then west twenty-five feet, more or less, to Thomas White's ground; then north one hundred feet, to Grand street, more or less; and then down Grand street, to the place of beginning, twenty-five feet, more or less.’ The foregoing was the only description of them contained in the complaint therein. Subsequently, that case was referred to a referee to take proof of the facts alleged. As to the property in question, he reported that the decedent, under whom the parties claimed, obtained title thereto through a deed from one William Schotts to him, dated May 1, 1821, which was produced, and that the decedent had been in possession of the premises described in...