
    Van Epps v. Clock et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    July 20, 1889.)
    1. Specific Performance—Parol Contract to Convey Land.
    In an action for specific performance of a paroi contract for sale of land one S., who had been agent for defendant C. for 20 years, wrote to him in March that he had seen the land in question, as directed, and paid the tax on it; that plaintiff wished to buy it, and desired to know the price. Defendant replied: “My price is $250. Please tend that business for me. ” S. testified that three days later he took the letter to plaintiff’s house, who agreed to take the land, and he so wrote defendant C., but got no reply. Plaintiff took immediate possession of the land, built and repaired fences, grubbed, cut, and burned underbrush, etc., up to May, when defendant W., who had subsequently got a deed of the land, forcibly ousted her, and retained possession. Defendant C. said he had refused to sell to W.’s agent, as plaintiff was going to have the land. Meld, that the evidence sustained a_ finding that plaintiff took possession from defendant’s lawful agent, and exercised sufficient acts of ownership and performance under the contract to take it out of the statute of frauds.
    2. Vendor and Vendee—Bona Fide Purchaser.
    Defendant W., who purchased the land in May, testified that he was plowing on land adjoining that in dispute after plaintiff took possession, and saw what was done there; that he saw brush fires there: that plaintiff’s husband told him she was negotiating to buy the land, and had written to C. S. also testified that he told one M., the agent of W., who was trying to buy the land forW., about the negotiation between plaintiff and himself, and that he had written to C. about it. Meld, that W. had sufficient notice of plaintiff’s possession, and of the agreement with S., to put him upon inquiry as to her rights, and was not a bona fide purchaser.
    8. Same—Rights of Purchaser.
    The rights of a person in possession of land under a paroi contract for a sale thereof are not prejudiced or diminished by a compulsory surrender of possession to a subsequent purchaser with notice of the contract and claim of ownership.
    Appeal from special term, Madison county, Smith, Judge.
    Action brought by Hannah M. VanEpps against Simon Clock and John Wells, to compel the specific performance of a verbal contract made by defendant Simon Clock to sell a certain parcel of real estate to plaintiff, upon the ground that she entered into possession under the contract, and partly performed the same. The case was tried at special term, before Smith, J., who found as conclusions of fact:
    “(1) That the defendant Simon Clock, was on the 20th day of April, 1887, .the owner in fee of the parcel of land described in the complaint, and was desirous of selling the same, and that said Simon Clock, at the town of Sullivan, Madison county, ÜST. Y., then made a verbal agreement with said plaintiff to sell said land and premises to her for the sum of $250, to be paid upon receiving a deed o£ conveyance of said premises in the month of June following, and that in the mean time said plaintiff should have possession of said land. >
    
    “(2) That under and in pursuance of said contract, with the knowledge and consent of said defendant Clock, who delivered possession of said premises to her, said plaintiff entered into possession of the same, and retained possession thereof until shortly before the commencement of this action, when she was dispossessed in part by said defendant John Wells.
    “(3) That while said plaintiff was in possession of said premises, and on or about the 10th day of May, 1887, said defendant Wells procured said defendant Clock to execute to him a warranty deed of conveyance of said premises, and the same was then executed and delivered to said Wells, and said Wells paid said defendant Clock $250 in cash for said land.
    “(4) That said lands were worth the sum of about $400, and that by reason of the breach of said contract by said defendant Clock said plaintiff lias sustained damages, if said lands are not restored to her, to the amount of $150.
    “(5) That said defendant Wells, at the time he purchased said premises, knew that the plaintiff was in possession of the same, and had notice that there was a verbal contract existing between said defendant Clock and said plaintiff for the sale of the premises by said Clock to her; that, after having notice that plaintiff had such verbal contract for said premises, said defendant Wells purchased the same without making any inquiries of plaintiff; that, if such inquiries had been made, he would have learned the terms of such contract in full, and that said plaintiff had partly performed said contract, and was in possession of the premises thereunder; that said defendant Wells did not purchase said premises in good faith, but with knowledge and notice of plaintiff’s rights, or sufficient notice to put him on inquiry in regard thereto.
    “(6) That since the making of said contract with plaintiff said defendant Wells has cut off wood, etc., from said premises, to the value of about $50, and has made improvements upon said premises to a greater amount.
    “(7) That previous to the commencement of this action said plaintiff tendered to said defendants, and each of them, the sum of $250, and requested them to execute a deed of conveyance of said premises, and they refused so to do; that at the time said Clock was requested to execute said deed a warranty deed of conveyance of said premises to said plaintiff was tendered to him ready for execution; that said Clock then told plaintiff that he had conveyed the land once, and could not sell it again, and did not examine or look into the deed presented to him, and did not know what kind of a deed it was, or that it contained any covenants of warranty; that said deed in fact did contain the usual covenants of a warranty deed, but that said Clock did not refuse to execute the same upon that ground; that at the time said defendant Wells was tendered said sum of $250 and requested to execute a deed of said premises to said plaintiff a quitclaim deed of conveyance of said premises from said Wells to said plaintiff was tendered to him, ready for execution, and that said Wells refused to execute the same.
    “ (8) That the value of the labor performed by the plaintiff in fencing and grubbing, burning roots and brush upon said premises, while in possession thereof, was about fifteen or twenty dollars, and did not exceed twenty dollars.
    “(9) That defendant Wells was a young man, unmarried, and lived with his father, and owned the farm adjoining the premises belonging to the plaintiff and occupied by her, upon one side and in the rear; that the eight acres in question surrounded the plaintiff upon the third side, and came up to the highway, and within fourteen feet of her front door.
    “(10) That some time in the month of April, 1887, one Sheldon Smith, being informed by plaintiff that she would like to purchase the said land, at her request addressed a letter to the defendant Clock, which he received, of which the following is a copy:
    “ ‘ Cicero Centre, April 6.
    “ * Dear Sir : I received your letter the 3d. I went and seen to that wood lot, and paid the taxes on it; it was dollars 31. Mr. Van Epps would like to buy it this Spring; he wanted me to ask you how much you want for it. I have seen to the Snyder business for you. I have paid 82 dollars and 20 cents of my own; I had to get 70 dollars of Steve. We have lots of snow round yet; roads are very bad. The reason why I did not write before was because I did not get my hay drawed; the roads was so bad nobody could draw; I thought I was going to draw as soon as it was pressed, but it got so bad I could not. This leaves me as usual; hope this will find you and your family well. Tours truly,
    “‘Sheldon Smith.’
    “(11) That in answer to said-letter said defendant Clock, through his daughter Elizabeth, sent a letter to said Smith, which was received by him, of which the following is a copy:
    “‘Minden, April the 15th, 1887.
    “ ‘Sheldon Smith, Esg.—Dear Sir: I received your letter the 9th. I was glad to hear from you, and that you had the matter all settled again. Now, about the wood lot; my price is Two Hundred and Fifty dollars; that is what it cost me, and I will sell it for that sum. Please attend that business for me. I want you to let me know in time so that I know how it is. We have lots of snow yet. Fort Plain bridge has gone to Canajoharie with the high water and ice last Monday night. Tours truly,
    “‘Simon Clock.’
    “(12) That on or about April 20, 1887, said Smith showed said plaintiff said letter from defendant Clock so received, and she told said Smith, among other things, that she would take the land at the price of $250; that she wanted possession of said land at once, and other things; that said Smith told said plaintiff that she could have said land at that price, and have possession of same at once, and that it was a bargain; that defendant Clock would be up about the 1st of June, when she could pay the money and receive the deed, and that he, said Smith, would write Clock to that effect; that immediately after said conversation said plaintiff took possession of said land, and commenced preparing said ground for buckwheat on the very day that said bargain was made.
    “(13) That thereafter, and on or about May 1, 1887, said Smith wrote to defendant Clock a letter, received by him, of which the following is a copy:
    “1 Cicero Centre.
    “ ‘ Dear Sir: I now take the opportunity to answer your letter. I have told Steve that you wanted all the money, and I went over and see the man about that wood lot; he said he would get the money for you; he said he would give your price, $250, for it. Now I will tell you of myself; I cannot get enny for you; I have not got enny to get enny out of; I have had bad luck with my lambs; I am sorry that I cannot; I have not done any spring work yet; it has rained three days rite A long now; this leaves us usual; hope this will find you the same. Tours truly,
    “ • Sheldon Smith.
    “«Mr. Van Epps will take the wood lot when you come up.’
    “(14) That the defendant Clock made no reply to the last-mentioned letter, and had no further communication or correspondence with said Smith about the sale of the land, and did not inform him that he would sell the land to the plaintiff, or give her a deed thereof.
    “(15) That the defendant Clock had no communication with the plaintiff about the land in question, and did not know her, and did not know that said Smith had assumed to sell the land to her, or had made any agreement with her in respect to it, and had no knowledge or information of anything being said or done between the plaintiff and said Smith, other than what appears in the letters of said Smith to him, said Clock, above mentioned and referred to.
    “(16) That there was nothing said between said plaintiff and said Smith about a warranty deed of said land from said Clock.
    “(17) That, for several years before the interview between said Smith and said plaintiff, she caused fences to be mads on said land, and used the same more or less for pasturing stock thereon. Said fence remained, and was upon the land at the time of said interview, and was made without the consent or knowledge of the defendant Clock, but he did not own the land at the time said fence was made.
    “(18) That this action was commenced by the service of the summons and complaint herein upon the defendant John Wells upon the 9th day of July, 1887, and upon the defendant Clock on the 15th day of July, 1887.
    “(19) That plaintiff’s husband was her agent with reference to the land described in the complaint, and everything which the evidence shows to have been said or done by him in any manner relating to said land or the purchase thereof was said and done as her agent.
    “(20) That prior to April 20, 1887, plaintiff requested Sheldon Smith to write defendant Clock with reference to said land, to the end that she might purchase the same; that, before the alleged contract between plaintiff and said Smith was made, Smith had shown plaintiff the letter from defendant Clock to him, which was given in evidence; that plaintiff read it, and knew the contents thereof.
    “(21) That said plaintiff was forcibly dispossessed in part of said premises before this action was begun, and was in part possession of same at the time of the commencement of this action.
    “(22) That before this action was commenced said defendant Wells made some improvements in fencing, and grubbing out brush to fit the ground for buckwheat, and that said improvements were of about the value of $100, and that when this action was commenced said premises, in consequence of said improvements, were worth a considerable sum more than when said defendant Wells bought the same; that all said work was done and improvements made by defendant Wells with knowledge of plaintiff, and his part possession was with her knowledge; that while he was in part possession and making said improvements said plaintiff had notice that he, said Wells, claimed to own said premises.”
    From the judgment entered thereon defendants appeal.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    S. Earl and M. E. Driscoll, for appellants. W. ff. Tracy, for respondent.
   Hardin, P. J.

In Lobdell v. Lobdell, 36 N. Y. 330, it was said, viz.: “ The rule which courts of equity have adopted in suits for the specific performance of contracts requires that the contract be established by competent and satisfactory proof, to be clear, definite, and certain, for the reason, as Judge Story expresses it, that a court of equity 1 ought not to act upon conjectures,’ and if the proof should end in leaving the contract uncertain, so that the court cannot say what its precise import and limitations are, a decree for a specific performance will be withheld. 2 Story, Eq. Jur. §§ 764, 767. All this depends upon the evidence; and, if evidence is given 'in the court below tending to the establishment of such a contract, the sufficiency of the proof to satisfy the mind of the court as to the existence of the contract with the requisite degree of clearness and certainty is not a matter for this court to consider.” Findings have been made by the trial judge upon evidence which to his mind was satisfactory, and, although there was some conflict in the evidence, the conclusions reached by him, seem to us, from an examination of the appeal-book, to accord with the weight of the testimony. Sheldon Smith had for several years been intrusted with business transactions for the defendant Clock. However, in April, 1887, as he testifies, he “had no other business for him, Clock, except this. ” On April 6th Smith addressed a letter to Clock, in response to a letter which he had theretofore received from Clock, in which Smith said, viz.: “I went and seen to that wood lot, and paid the tax on it; it was dollars 31. Mr. Van Epps would like to buy it this spring; he wanted me to ask you how much you want for it.” That letter was received by defendant Clock, and on the 15th of April, 1887, in response to Smith’s letter, he says: “How, about the wood lot; my price is two hundred and fifty dollars; that is what it cost me, and I will sell it for that sum. Please tend that business for me. I want you to let me know in time, so that I know how it is. ” Beading the language just quoted in connection with the circumstances surrounding Clock and Smith, and considering the relations existing between them, we are inclined to the opinion that the expression, “Please tend that business for me,” was used for the intention of soliciting Smith to attend to the business of selling the wood lot for Clock for the sum of $250. Smith evidently so understood the letter, and evidently so informed the plaintiff and her husband, for, after receiving it, he held an interview with the husband, in behalf of the plaintiff, and, according to his testimony, he left his home in Cicero and went to see the husband of the plaintiff. He expressed it in his testimony as follows: “Hot long after receiving this letter I went to Mr. Van Epps, and took the letter with me. * * * I was down there, and they wanted to buy it at that price, and wanted me to write to Mr. Clock, and I did so. Then they said they would take it at that price, and then wanted me to write to Mr. Clock that they would take it at that price, and I done so; and I never got any answer to that letter, whether he would or would not at all. * * * They claim it was a bargain. They said they would take the place. I showed them the letter. * * * They said they would pay the money the 1st of June, when Mr. Clock came up. I told him he had to come up about the 1st of June, and would be up if nothing happened more than we knew of. He said if he had it he wanted to clear up some, and put it to buckwheat or something. * * * I might have said it would not make any difference or something. * * * I don’t know whether I did or not. I then went home, and wrote to Mr. Clock. * * * How soon after I got home I can’t tell; it might have been a day or two, or three or four. I never received any reply to the letter I wrote him. I directed my letter to defendant Clock at Minden, Montgomery county. That is his post-office address. * * * The last letter I wrote to Mr. Clock, and the one to which I received no reply, stated, as near as I can tell, that Van Epps would take the lot at that price, and would have his money for him when he came up the 1st of June.” The testimony of the plaintiff and of her husband in respect to the details of the conversation held with Smith in the negotiation for the land is more full and complete, and the circumstance of the letter which he (Smith) had received from Clock was brought out more distinctly, and the circumstances attending the conversation more fully discussed, and the treaty held with Smith as the supposed agent with apparent authority to act for Clock in the sale of the wood lot was given. Their testimony also indicates that they were to be permitted to take immediate possession of the premises, and that they did so, and commenced labor thereon, and continued to exercise acts of ownership and acts indicative of possession, and to make alterations in the fences and the surface of the land in cutting away the brush and underbrush; continued such acts of ownership from the day following the purchase up to the 14th of May, which was the occasion of their receiving their first intimation that their contract made-with Smith was not to be carried out, was doubted or disputed, and that Wells had interfered and procured a deed from Clock of the premises. We think the evidence was sufficient to sustain the findings of the trial judge to the effect (1) that Smith appeared to have authority to make a sale of the premises to the plaintiff on the occasion when the negotiation was had; (2) that the plaintiff acted upon the apparent authority of Smith, and was warranted in doing so; (3) that she took possession in virtue of the negotiation and arrangement made with Smith in respect to the premises; (4) that the several acts of ownership, and the possession, were in virtue of and under the agreement made with him, and they were “suflieient performance to bring it within the well-settled rule that partial performance takes a paroi agreement out of the statute of frauds.” Beardsley v. Duntley, 69 N., Y. 584. While the improvements were slight, while the expenditures of the plaintiff and her agent upon the land were not. great, while the money value of the improvements made by her was moderate in amount, it must be borne in mind that the purchase price or value of the land was moderate. The purchase price was $250. There is some evidence, and there is a finding, that the value of the land was $400. Apparently the expenditures in repairing the fences and cutting up the brush and underbrush and improving the lauds, expenditures and improvements prior to the 14th of May, 1887, may not have exceeded 10 per cent, of the purchase price of the land, yet, under all the circumstances disclosed by the evidence given, at the trial, we are constrained to say that the conclusion of the trial judge must be allowed to stand.

We are not able to say, after giving such influence to his findings as they might legitimately receive in a case of this character, that bis conclusion upon the facts is against the weight of the evidence found in the appeal-book. We therefore accept his findings of fact in respect to the circumstances of the negotiation and the contract made with Smith as the avowed agent of Clock, and having the apparent authority from Clock to consummate a sale of the property to the plaintiff. Significance must be given to the circumstance that appears beyond cavil that about the 1st of May, 1887, Smith wrote a letter to the defendant Clock, which apprised him of the negotiation and sale of the premises. In that letter Smith said: “I went over and see the man about this wood lot. He said he would get the money for you. He said he-would give your price, $250, for it. * * * Mr. Van Epps will take the lotVhen you come up.” The defendant, after receiving that letter, made no reply. He in no manner refused to be bound by the arrangement which was-thus communicated to him. Apparently he acquiesced in the sale of the property, of which he was thus apprised. It seems from the testimony that when the agent of the defendant Wells applied to Clock for the purchase of the land, he seemed to understand that an arrangement had been made by which the plaintiff was to have the same, or that she had become the purchaser thereof. In one of the interviews held with him the defendant said, viz.: “He refused three different times to Mr. Marsh; that we were going to have the place; that is what Mr. Clock told me himself; that Van Epps’ folks were going to have the place. ” Considering this evidence with the other we have referred to, we are of the opinion that the defendant Clock became bound by the arrangement which was made between the plaintiff and Smith in respect to the lands. Lawrence v. Taylor, 5 Hill, 107.

We have no doubt the learned counsel for the appellant Clock is correct when he states, viz., “that the plaintiff and the defendant Wells had been for sometime vicing with each other in their attempts to buy these eight acres, and considerable feeling had arisen between them on the subject;” and we aré also-of the opinion that the facts and circumstances disclosed by the evidence in respect to the occupation of the premises under the arrangement made with Smith for the purchase of the same by plaintiff were sufficient to put the defendant Wells upon inquiry in respect to the rights of the plaintiff in virtue of the arrangement made with Smith. If inquiry had been prosecuted with diligence it must be presumed Wells would have ascertained the precise state of the arrangement between Smith as the agent for Clock with the plaintiff. Wells must be dealt with in the same manner as though he had prosecuted the matter with diligence, and ascertained the actual situation. According to Williamson v. Brown, 15 N. Y. 354, it may be said, the negligence of Wells in not prosecuting the inquiry is “fatal to his claims to be considered a bona fide purchaser.” As we said in Brumfield v. Boutall, 24 Hun, 456, the rule requires “clear and strong circumstances” upon which the notice is found. We think the evidence in this case sufficiently comes within the rule which we laid down in that case, and we may add from the language used in the case from which we have just quoted, viz.: “We think it was just such a notice as would have awakened the diligence of a prudent man.” We think there was such notice as, under the authorities, warranted the court in saying that the defendant Wells had actual notice of the relations which the plaintiff sustained to the property at the time he negotiated with Clock, and parted with his money, and took a deed of the premises. Ellis v. Horrman, 90 N.Y. 473. The plaintiff was in possession, exercising acts of ownership, within the sight of and within the knowledge of the defendant Wells before he (Wells) sought to conclude an arrangement with the defendant Clock. If he did not make adequate inquiry it was his own fault. It was said by Judge Story in Flagg v. Mann, 2 Sumn. 554: “If he does not inquire he is bound in the same manner as if he had inquired, and had positive notice of the title of the party in possession.” In Tuttle v. Jackson, 6 Wend. 213, the chancellor said: “Whatever is sufficient to make it his duty to inquire as to the rights of others is considered legal notice to him of those rights.” These cases were cited and followed in the opinion of the court in Ellis v. Horrman, supra. See page 474.

Plaintiff resisted the efforts of Wells to obtain possession of the premises for some time. He persisted, however, in a resolute way, by forcible means. He expelled her from the possession, and obtained possession himself, after he acquired the deed from Clock. Such possession, under such circumstances, however, gives him no added rights. He stands in the same relation to the property in equity that he would have occupied had she continued to assert her possession down to the day the action was commenced, or down to the day of the trial thereof. We find nothing in Haight v. Child, 34 Barb. 186, or Morrill v. Cooper, 65 Barb. 519, which warrants us in saying that plaintiff’s rights are any the less by reason of the compulsory surrender of possession after the purchase or deed taken by the defendant Wells. We recognize the rule pressed upon our-attention by the learned counsel for the appellant Clock, that, “where a vendee of real estate under a paroi contract relies upon his entry into possession to take it out of the statute of frauds, hisentry must be connected with and referable to the contract, and it must clearly appear that he took possession by the known permission of the vendor. If possession be taken without such permission, express or implied, it is no foundation for relief in equity according to any of the authorities.” And, as was held in Morrill v. Cooper, the possession must refer to agreement of which performance is sought. But, as we have already said, the trial judge has found upon adequate evidence that the possession of the plaintiff was in virtue of the contract; and her acts of ownership, her improvements to the land, to the fences, were made in virtue of the permission to take possession, given to her by Smith at the time he consummated the arrangement that she might have the land upon paying $250 therefor to Clock, when he came up in June, and that she might have immediate possession thereof.

We are of the opinion that the court committed no error in allowing the witness Smith to state what arrangement was made with the plaintiff; nor in stating the price for which she might have the land; nor in making the ruling allowing the circumstances of that arrangement to be given in detail by the plaintiff; nor allowing the witness to state what was done upon the property after possession was taken in pursuance of the contract; nor in giving “general description” of the land. Nor do we think it was error to receive the evidence in respect to the struggle between plaintiff and Wells over the possession of the property after she received notice from Wells that he claimed to have purchased the same. Nor do we think the defendants were prejudiced by admission of testimony tending to show that the value of the land was $400. We have found nothing in the course of the trial which warrants us in disturbing the disposition made of the case upon the merits. Judgment affirmed, with costs. All concur.  