Phillips v. Sturm

• Decision Date: 25 January 1917
• Citation: 99 A. 689,91 Conn. 331
• Parties: PHILLIPS v. STURM et al.
• Court: Connecticut Supreme Court

99 A. 689

91 Conn. 331

PHILLIPS

v. STURM et al.

Supreme Court of Errors of Connecticut.

Jan. 25, 1917.

Appeal from Court of Common Pleas, Hartford County; Daniel A. Markham, Judge.

Action by Saley Phillips against Louis Sturm and others. Judgment for defendants, and plaintiff appeals. No error.

Reuben Taylor, of Hartford, for appellant. Josiah H. Peck and Solomon R. Herrup, both of Hartford, for appellees.

THAYER, J. This action was brought to recover damages from the defendant for failure to convey certain real estate situated in Hartford. The only question of law raised by the plaintiff is whether under our present statutes unpaid taxes assessed against a person upon the valuation of one piece of real estate owned by him is a lien upon other pieces of land owned by him in the same town.

The complaint alleges that the plaintiff and the defendants on the 5th of August, 1914, entered into a written contract, a copy of which, as an exhibit, is made part of the complaint. It appears from this exhibit among other things that by the written contract the defendants covenanted to sell and by a sufficient warranty deed convey to the plaintiff, and the plaintiff covenanted to purchase of them for the purchase price of $2,900, of which $300 was paid upon the signing of the agreement, three pieces of land subject to four mortgages which are described in the contract and free from all other incumbrances, the deed to be given and the balance of the purchase money to be paid at any time before the 15th of August, 1914. The contract also provided that if the party of the second part, the present plaintiff, should fail to pay the $2,600 on or before August 15, 1914, he should forfeit to the defendants as liquidated damages the $300 already paid as part of the purchase price. It was also stipulated that "all adjustments of rent, insurance, taxes, water rents, interest on the several mortgages," etc., should be made on the day of transfer, as of date of September 1, 1914. The many other provisions and stipulations in the contract need not be referred to because not pertinent to the present inquiry. The complaint alleges that, after the making of the contract, "by mutual agreement between the plaintiff and the defendants, the time for completing said agreement was extended by several mesne extensions to the 24th day of August, 1914," and that on that date the plaintiff was ready and willing and offered to the defendants to pay the $2,600, and duly perform all his agreements under the contract upon the like performance by the defendants. The complaint does not allege nonperformance, or unwillingness, or nonreadiness to perform, by the defendants, but alleges that there is due from the defendants to the city of Hartford a large amount of taxes which are an existing lien upon the premises covenanted to be conveyed, and that there are two mortgages other than those referred to in the contract upon the same premises, or parts thereof, still unsatisfied of record.

The court has found that the contract was made as alleged; that the time for performance was extended as alleged; that on the 24th of August, 1914, there were due from the defendants to the city of Hartford and unpaid taxes assessed as of the date October 1, 1913, on the premises to be conveyed and also other taxes assessed against the defendants on other property owned by them; and that there were also two mortgages upon the premises other than those named in the contract recorded and not released upon the record. It is found that the defendants on or before August 24, 1914, had secured releases of these mortgages to be executed by the mortgagees and held in escrow to be delivered to the defendants upon the delivery of other security in lieu thereof, and that the defendants were then ready, able, and willing, upon the payment by the plaintiff of the balance due from him under the contract to cause the release of record of said mortgages, to pay to the city of Hartford all sums assessed as taxes on the land described in the contract and to deliver a warranty deed of the same to the plaintiff free from all incumbrances except the mortgages excepted in the contract, and then offered to do so, but that the defendants were not then ready and willing to pay to the city the taxes assessed upon their other property. It is found that the plaintiff did not then or at any other time offer to pay the defendants the balance to be paid under the contract, and made no tender of performance of his obligations under the contract, and there is no finding that he was ready and willing to perform them.

The plaintiff claims that the agreements of the parties embodied in the contract are mutual and dependent, that he was not bound to pay for the land unless the defendants were ready and willing to convey to him by warranty deed the land in question free from incumbrances except the four...