
    Amanda A. Northrup, Resp’t, v. Anson A. Gibbs, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    1. Specific performance of a contract to sell land—When vendor NOT RELIEVED BY ACTS OF VENDEE.
    By a contract for the sale of land made between the parties the plaintiff agreed to sell, and by a good and sufficient warranty deed convey to the defendant certain premises on receiving payment, consisting of a conveyance by the defendant to her by a like deed of a certain lot and $800 to be made on or before a certain specified day. The conveyances of the parties respectively were to be accompanied by a complete search relating to the title of the premises. On the day specified the plaintiff was ready and willing to perform the agreement on her part, and on that day the plaintiff’s agent was at the place of performance with a deed duly executed by the plaintiff and ready to deliver it. The defendant objected to the sufficiency of the search and acquiesced in the plaintiff’s taking further time to obviate the objections, which was afterwards done. A formal tender by the plaintiff was thereafter made of the deed and complete search when the defendant decline i to accept or make performance. The defendant had at no time prior to this formal tender, tendered performance or declared readiness to perform on his part. Held, that the defendant was in no situation to effectually claim that the plaintiff was in default, or that lie was relieved from the performance of his contract.
    2. Same—Decree—When it can require the husband to obtain release of wife’s dower.
    By the agreement the defendant undertook to make a conveyance which required the release of the dower of his wife in the premises. Held, that the decree requiring him to specifically perform operated only on him, and that it would be assumed that he would be able to fully perform his covenant in that respect until the contrary appeared.
    3. Same—Discretion of court—Limitation of.
    While the specific performance of a contract is not an absolute right, the exercise of the discretion of the court is so limited by principles applicable to such cases that there must be some recognized cause for denial of such relief.
    4. Same—When it will not be decreed on account of inadequacy of CONSIDERATION.
    It requires a strong case to justify the denial of relief on the ground of inadequacy of consideration alone. It must be so gross as to shock the conscience and furnish-some evidence or inference of surprise or fraud.
    
      5. Same—When vendor’s loches will render it inequitable.
    If a vendor’s delay or loches in performance of his contract to convey property results in a change of circumstances, which renders it inequitable to require the vendee thereafter to perform the contract and take the title, he may for that reason be relieved from its performance.
    Appeal by the defendant from judgment entered on decision of Monroe special term.
    
      H. H. Woodward, for app’lt; M. H. Briggs, for resp’t.
   Bradley, J.

The action was brought for specific performance of a contract for the sale of land, made between the parties January 16, 1886, by which the plaintiff agreed to sell, and by a good and sufficient warranty deed, convey to the defendant certain premises situate in Livonia, Livingston county, on receiving payment, consisting of a conveyance by the deiendant to her by a like deed, of a lot in the city of Rochester, and §8,000 in money, to be made on or before January 23, 1886. And the conveyances of the parties respectively were to be accompanied by a complete search relating to the title of the premises. The trial court found that the plaintiff tendered performance on her part to the defendant, who by his refusal to perform, was in default, and directed judgment for the plaintiff, which was entered for the relief demanded in the complaint. The main question upon the merits is whether the defendant was relieved from liability to perform the contract by delay on the part of the plaintiff to furnish a satisfactory search of the title to the land she undertook to convey.

The formal tender by the plaintiff of her deed, with a complete search, was made about the 1st of September, 1886, when the defendant declined to accept or make performance. And on his part it is contended that the contract had ceased to be effectual to require him to do so. The agreement contains no provision which necessarily makes time as of the essence of the contract, but the parties might make it so. And if the delay was attributable to the plaintiff without the acquiescence of the defendant, and unless it was in some manner waived by him, he was relieved from the performance of the contract and the plaintiff was not entitled to recover. Merchants’ Bank v. Thompson, 55 N. Y., 7; Benedict v. Lynch, 1 Johns. Ch., 370; Babcock v. Emrich, 64 How., 435.

This proposition involves the inquiry whether the defendant was ready and offered to perform, and thereby placed the plaintiff in default. Hubbell v. Van Schoening, 49 N. Y., 326. It was evidently contemplated that the parties would meet for performance of the contract at the office of the lawyer who drew it. The court has found that on the day specified, January twenty-third, the plaintiff was ready and willing to perform the agreement on her part. And it appears by the evidehce that on that day the plaintiff’k agent was at that place with a deed duly executed by the plaintiff and ready to deliver it; that the defendant was not there on that day, but the parties met at that place on the Monday following, and objection was made to the search produced by the plaintiff to the effect that it did not extend back twenty years, and it did not represent that a decree of mortgage foreclosure had been satisfied of record. There appeared a satisfaction of the mortgage which did not appear to also include the decree, but the plaintiff’s agent had there an unacknowledged paper subscribed by the attorney for the mortgagee to the effect that the decree had been 'paid. And there was evidence on the part of the plaintiff tending to prove that the defendant then said substantially that he knew the plaintiff had title free from encumbrance, but that if he wanted to sell, objection might be made unless the search showed that the title was good of record; that the defendant acquiesced in the plaintiff taking further time to obviate the objections, which was after-wards done. And that the defendant had at no time prior to the formal tender before mentioned tendered,performance or declared his readiness to perform on his part.

Upon this state of facts the defendant was in no situation to effectually claim that the plaintiff was in default or that he was relieved, from the performance of his contract. If, however, the court had deemed the facts governed by the evidence on the part of the defendant it could not have' directed judgment against him. But upon the conflict of evidence a question of fact was presented, and it must be assumed that the court adopted as correctly representing the facts the evidence which was the most favorable to the plaintiff’s case. And in that view the findings of fact were supported in the sense essential to the determination of the court. In the conclusion of law the court determined that the plaintiff was entitled to judgment directing the defendant to execute and deliver a conveyance in fee, with covenants of warranty and release of dower. Exception was-taken to the conclusion that the conveyance should embrace a release of dower, and it is urged this was error because that is dependent upon the voluntary action of the wife. It is true, the wife cannot be required by the court to release her inchoate right of dower, and if the court had so directed, it would have been ineffectual and, to that extent, error. Dixon v. Rice, 16 Hun, 422. The court has not sought to do that. The defendant made the agreement and undertook to make a conveyance which required the release of dower of his wife in the premises. The decree operates on him only, and it may be assumed that he will be able to fully perform his covenant in that respect until the contrary appears. Martin v. Colby, 42 Hun, 1; 3 N. Y. State Rep., 415. In the case last cited, the defendant offered to prove, upon the trial that his wife would not execute the deed, and therefore he could not perform his agreement to convey. And it was there held that it was competent for him to prove, by way of defense, his inability to make the conveyance required by his contract. There is no proof upon that subject in the case at bar, and the defendant is, by the judgment, simply directed to perform his contract. The exception was not well taken.

While the specific performance of a contract is not an absolute right, the exercise of the discretion of the court is so limited by principles applicable to such cases that there must be some recognized cause for the denial of such relief. The defendant’s counsel contends that the value of the plaintiff’s premises was greatly inadequate for the consideration which he agreed to pay for them. It requires a strong case to justify the denial of relief on the ground of inadequacy of consideration alone. It must be so gross as to shock the conscience and furnish some evidence or inference of surprise or fraud. 2 Pomeroy Eq. Jur., p. 429; Margraf v. Muir, 57 N. Y., 155.

There appears by the evidence no inequitable circumstances which led the defendant to the making of the •contract. And it appears that he was then familiar with the property and had been so for many years. There is also a conflict of evidence as to its value at the time the agreement was made. No defense appears on the ground of inadequacy of consideration.

It is said on the part of the defendant that he made the contract with a view to the sale of the premises or a portion of them to a party with whom he was then negotiating, and from whom he had an offer, and he gave evidence to that effect, and he also gave evidence tending to prove that the plaintiff’s agent was advised of his contemplated arrangement to sell to such party. This is contradicted by the evidence of the latter: The defendant offered to prove that after there had been some meetings of the parties he asked the party with whom he had negotiated to purchase the property, if he would take title to it, and such person said he could not do it. This was excluded and exception taken.

If a vendor’s delay or loches in performance of his contract to convey property results in a change of circumstances which renders it inequitable to require the vendee thereafter to perform the contract and take the title, he may for that reason be relieved from its performance. Merchant's Bank v. Thompson, 55 N. Y., 7. But it is not seen how the fact that this third party said he could not take title to the property would furnish any legitimate evidence in support of a defence of that character. Whatever may have been the expectation of the defendant he had no contract with that person for the sale of the property to him, and was deprived of no right he had in that respect.

The evidence relating to the material facts was in conflict, and presented to some extent the question of the credibility of witnesses, which was for the determination of the trial court, where the opportunity was greater then here, to properly dispose of that question. The result there given to the trial does not seem to be so against the weight of the evidence as to justify its disturbance on review.

The judgment should be affirmed.

Haight and Dwight, JJ., concur.  