
    Edward G. Reisterer, Plaintiff, v. Lida L. Reisterer and Frances M. Reisterer, Defendants.
    (Supreme Court,
    Erie Equity Term,
    September, 1913.)
    Discontinuance — actions affecting real estate — placoing deeds in escrow to be delivered when actions are discontinued.
    Specific performance — maintenance of action to compel conveyance of part of premises described in an unexecuted deed.
    Where, on the day of the filing of notice of the pendency of two actions affecting real estate wherein the plaintiff herein was plaintiff and the defendant herein was defendant, the parties executed a paper reciting that a deed from plaintiff to defendant signed but not acknowledged, and a deed from defendant to plaintiff containing no conditions and not signed, were placed in escrow io be delivered when the lis pendens was canceled and the action discontinued, and “ agreement signed by both parties,” and defendant refused to execute her deed left in escrow, plaintiff cannot maintain an action to compel defendant to convey to him an undivided one-half of a part of the premises described in defendant’s unexecuted deed.
    The discontinuance of the prior actions and the cancelling of the lis pendens were not such part performance on plaintiff's part as entitled him to specific performance, and his claim of an interest in the real estate could be restored to him by vacating the order of discontinuance.
    The fact that after the discontinuance of the actions plaintiff joined with defendant in several mortgages on a part of the real estate described in defendant’s unexecuted deed did not prejudice his rights, it appearing that he signed the mortgages upon the execution by defendant of her last will and testament by which she left all her property to him.
    Action for specific performance.
    Norman D. Fish, for plaintiff.
    W. B. Simson, for defendants.
   Brown, J.

On October 13,1911, there were pending two actions wherein this plaintiff was plaintiff and the defendant Lida L. Beisterer was defendant, in which the plaintiff claimed an interest in certain real estate in the city of Tonawanda, the title to which was in the defendant Lida L. Beisterer; notice of the pendency of each of said actions had been filed and recorded in the office of the county clerk. On that day the plaintiff and the defendant Lida L. Beisterer met at the law office of E. B. Harrington, where a paper of which the following is a copy was signed by them:

“ Ton aw anda, N. Y., Oct. 13,1911.
“ E. B. Harrington :
“ Dear Sib: The deed given by E. Q-. Beisterer to Lida L. Beisterer, and deed of Lida L. Beisterer to E. Gr. Beisterer are placed in escrow with you and are to be delivered when lis pendens .and civil actions are discontinued and agreement signed by both parties.
E. Gr. Beisterer.
“ Lida L. Beisterer.”

The deed from E. Gr. Beisterer to Lida L. Beisterer was signed by E. Gr. Beisterer but not acknowledged; the deed from Lida L. Beisterer to E. Gr. Beisterer was not signed by Lida L. Beisterer, and was without any conditions therein. With these deeds in this condition they were delivered to E. B. Harrington, together with the paper above quoted. The defendant Lida L. Beisterer thereafter refused to execute the deed thus left with Mr. Harrington. The plaintiff caused the discontinuance of each of said actions and the Us pendens therein to be cancelled of record November 25, 1911. On December 5, 1911, the plaintiff joined with the defendant Lida L. Beisterer in the execution of several mortgages upon a part of the real estate described in the unexecuted deed, then in the hands of Mr. Harrington. On February 5, 1912; the plaintiff brought this action to compel the defendant to convey to the plaintiff an undivided half of a part of the premises described in the unexecuted deed of Lida.L. Reisterer, and to compel the defendant to assume and pay one-half of the plaintiff’s debts; and for judgment decreeing that on the death of Lida L. Reisterer her undisposed of interest in certain of such real estate should go to the plaintiff in trust for the defendant Frances M. Reisterer, and that upon the death of Lida L. Reisterer the plaintiff should have the life use of certain other of such real estate.

Upon the trial the plaintiff claimed that the conditions sought to be enforced by the decree asked for had been orally agreed to by the.defendant, and that such oral agreement, together with the memorandum above quoted, constituted a valid contract of sale the performance of which could be enforced by the court, upon the theory that the plaintiff had partially performed the same by discontinuing the prior actions and canceling the lis pendens filed and recorded therein.

The defendant denied the making of any such agreement relative to conveying such real estate upon such conditions-, assuming plaintiff’s debts, the creation of a trust or the giving of a life use of such real estate to the plaintiff.

Assuming that the memorandum is an agreement on the part of Lida L. Reisterer to execute the deed to plaintiff left with Mr. Harrington, it is observed that such deed is to be delivered only when “ lis pen-dens and civil actions are discontinued and agreement signed by both parties.” It is not the discontinuance of the prior actions and the cancellation of the lis pen-dens that entitled plaintiff to the conveyance, but it is the signing by both parties of an agreement reduced to writing embodying the conditions that the plaintiff now claims the defendant orally agreed to, but which the defendant denies. It was for the very purpose of accurately and definitely settling the terms and conditions of sales of real estate that the statute of frauds was originally enacted. It is of the greatest importance that the terms and conditions upon which title was to vest in the plaintiff under defendant’s deed left in escrow should be exactly defined and unquestionably known; and apparently the parties realized such importance when they stipulated that the deeds were to be delivered only when this agreement as to such conditions ■ should be definitely and accurately fixed by a writing to be signed by both parties.

It is thus seen that the memorandum above quoted is a direction to the custodian of the escrow that when the parties shall have completed this agreement relative to the conveyance of the lands described in the escrow deeds, and shall have had their minds meet as to the terms of such conveyance, providing for the life estates, trusts and debts; and that when the provisions as to such matters shall have been reduced to writing signed by the parties, then the deeds are to be delivered, and not before. Such time has not yet arrived; the court would not be warranted in decreeing that the defendant Lida L. Reisterer must execute and deliver to plaintiff a conveyance embodying plaintiff’s claims as to the terms and conditions, when the parties by their written agreement have provided that such conveyance shall not be made until the parties shall have agreed in writing as to these conditions. The court cannot make a new contract for these parties. They have stipulated that there should be no conveyance until they agree in writing wbiat the terms of such conveyance should be; the court cannot say that there must be a conveyance in any particular form until the parties specify.what that form is; the court cannot compel a specific performance of' an agreement not made; the terms of the agreement specifying the conditions upon which the conveyance was' to be made were to be reduced to writing and signed by both parties; those terms and conditions are unknown. The paper of October 13, 1911, was merely a direction to the custodian of the deeds providing for their delivery when the parties had agreed in writing as to the manner the title to be conveyed should be held. The parties have failed to make such agreement.

The fact that plaintiff joined in the execution of the mortgages to the loan association does not prejudice him; he executed the mortgages upon the execution by defendant of her last will and testament, willing all her property to him.

The discontinuance of the prior actions and the canceling of the lis pendens by the plaintiff are not such part performance on his part as to entitle him to specific performance. He has not been prejudiced by such discontinuance; the defendant’s interest in the property has not changed. The plaintiff having parted with nothing by such discontinuance, his claim can be restored to him simply by vacating the order of discontinuance. He must be restored to the same situation as when he discontinued his prior actions; the' orders discontinuing those actions and canceling the Us pendens must be set aside and the Us pendens restored to its former status.

The plaintiff is entitled to judgment vacating and setting aside stipulations and orders of discontinuance and the order canceling the Us pendens, and restoring such actions and the lis pendens therein to their former .status; in all other particulars his complaint must be dismissed, but without costs.

Judgment accordingly.  