
    Edgar A. Forsyth, Appellant, v. Josephine Leslie, Respondent.
    
      Specific performance—the discretion as to its enforcement is not an arbitrary one—-■ what is a sufficient description to identify the land—mortgages, eighty and seventyfiveyea/rs old respectively, held not to be defects in the title—nor the absence of a deed to one of the mesne grantors — nor the absence of proof that certain grantors were the husband and heirs of a prior owner—presumption from a recital that a grantor was unmarried.
    
    While the enforcement of the specific performance of a contract rests largely in the discretion of a court of equity, such discretion must be exercised, not arbitrarily, but with due regard to established rules of equity as well as to the circumstances of each particular case.
    A party to a contract.for the exchange of two parcels of land which describes one piece as “ 370 feet of land on the north side of Riley Street, 300 fee't east of Humboldt Parkway,” and the other as “ two double houses on parmine Place, and known as 15 and 25 Carmine Place, in the city of Buffalo, ZST. Y.,” is not justified in refusing to perform such contract upon the ground that the descriptions of the premises are too vague and uncertain to permit of their being located.
    The existence, undischarged of record, of a mortgage more than eighty years old or of one seventy-five years old does not constitute a valid objection to the title of the premises described in such mortgage in the absence-of proof of any payment of either principal or interest thereon during the past fifty years.
    The title to premises is not rendered unmarketable by the fact that there is no record proof of any conveyance to one of the mesne grantors thereof, where it appears that there was in existence an unrecorded deed from the record owner of the premises to such mesne grantor, and that persons claiming title under the latter had been in the quiet and undisturbed possession of the premises for upwards of eighty years, during which time their title had never been questioned.
    
      ' Where one of the deeds in the chain of title was executed in 1832 by parties claiming to be the husband and heirs at law of a woman who held title to the • premises in Í817, the fact that it does not affirmatively appear that the woman was dead, or, if dead, that she left no will, or that the parties assuming to convey as her husband and heirs at law were, in fact, what they represented . themselves to be and of full age, does not render the title defective* especially _ when the certified search makes no mention of any will left by the woman and ■ it appears that the title derived under the deed from those claiming to be her - husband and heirs at law has never been questioned.
    A recital in a deed, that the grantor was unmarried, is, in the absence of evidence impeaching the truth of such recital, a sufficient answer to the.objection that it did not appear but that the grantor had a wife who refused to- join in the deed with him.
    Appeal by the plaintiff, Edgar A. Forsyth, from a judgment of the Supreme Court in favor of the defendant, entered in the office: of the clerk of the county of Erie on the 3d day of October, 1901, upon the decision of the court rendered after a trial at the Erie Special Term.
    This action was brought to compel the specific performance of' a written contract for the exchange of certain lands, entered into between the parties on the 20th day of December, 1899, which contract was in two parts and is as follows, viz.:
    “Agreement and Offer to Exchange.
    “ For a good and valuable consideration,, to me in hand paid by Josephine Leslie, the receipt of which is hereby acknowledged, I, Edgar A. Forsyth, of Buffalo, 1ST. Y., party of the first part, do hereby make Josephine Leslie, of Buffalo, LT. Y., party of the second part, the following offer through B. H. Downer, real estate agent; that is to say, I will exchange the following property, at a valuation of $11,500, and described as follows, viz.: 3J0 feet of land on the north side of Riley Street, 300 feet east of Humboldt Parkway, subject, however, to liens or incumbrances of sixty-eight-hundred dollars, as follows: Subject to a mortgage of $3,300, given to Homestead Loan Association on 220 feet on eastern portion and second mortgage, $660, on same portion and $2,840 on 150 feet on western portion, first mortgage, making a total of $6,800, said mortgages at Qf0 per annum.
    “For the following property, at a valuation of. $8,000, and described as follows, viz.: Two double houses on Carmine Place, and known as 15 and 25 Carmine Place, in the city of Buffalo, H. Y., subject, however, to liens or incumbrances of $1,500 on house and lot Ho. 25 and $1,800 on house and lot Ho. 15, both mortgages being bank mortgages at 5% interest.
    “ And as a further consideration the said party of the first part agrees that the second mortgage on the 220 feet and the first mortgage on the 150 feet shall be given by such party as the party of the .second part shall appoint to take title to said land, and there shall be a release clause releasing any one lot at $20 per foot the first -of any month. Any or all lots from both mortgages. Each of "us to furnish the other tax and title searches of our properties and the usual warranty deed of the same free. Rents, interest, insurance, water rates, and all other matters affecting the above properties, not herein otherwise provided for, to be adjusted between us •as of Dec. 31st, 1899. Each of said parties hereto hereby agrees to ■deliver to the other his above described property free and clear of all liens and incumbrances whatsoever, except as stated above, and -all papers are to be exchanged and title passed on or before Jan. •31st, 1900.
    
      “As witness my hand and seal this 14th day of December, 1899.
    “ EDGAR A. FORSYTH, Sb.
    
      “ Witness : B. H. Downer.
    “For a good and valuable consideration, to me in hand paid by Edgar A. Forsyth above named, the receipt of which is hereby •acknowledged, I, Josephine Leslie, by D. Y. Leslie, Agt., do hereby •accept the offer above, of exchange, made by said Edgar A. Forsyth, as above stated, and do. hereby agree to carry out the terms and •conditions above mentioned.
    
      “ As witness my hand and seal this 20th day of December, 1899.
    “ JOSEPHIHE LESLIE.
    “ By D. Y- Leslie, Atfy. in Fact.”
    
    The complaint set forth the contract in hoee verba, and described •the lands embraced therein by metes and' bounds. It also alleged an offer and willingness to perform on the part of the plaintiff, the defendant’s refusal, and demanded the relief appropriate, to such ■cases. The defendant’s answer admitted the execution of the con"tract, and while denying a proper tender and offer to perform by the plaintiff, as well as certain other allegations of the complaint, alleged in substance as reasons for non-performance:
    First, that the descriptions in the contract of the premises of both the plaintiff and defendant were too vague, uncertain and indefinite ' and insufficient to locate the same, and that a conveyance by sudli descriptions would be void for uncertainty ;
    
      Second, that the plaintiff’s title was not free and clear, but that the same was affected by liens and incumbrances thereon; and,
    
      Third, inability on the part of the plaintiff to perform. '
    The issues thus formed were brought to trial at an Equity Term of the Supreme Court held in the county of Erie on the 19th day of June, 1901, at which time the plaintiff’s complaint was dismissed* and from the judgment entered thereon this appeal .is brought.
    
      I. W. Cole, for the appellant.
    
      Henry C. Wadsworth and George Wadsworth, for the respondent.
   Adams, P. J.:

Upon certain facts found by the learned trial justice the conclusions were reached that the descriptions of the premises embraced in the contract were so vague and uncertain as to render a convey- ■ anee thereof void and of no effect; that at the time specified in the contract for its performance, viz., January 31,1900, the plaintiff did not have a good marketable title to the premises, which, by the-, terms of the contract, he had agreed to convey; that he failed to furnish to the defendant the requisite tax and title searches of such property, and that he did not and could not make to the defendant a valid and sufficient tender of a deed of his premises, in accordance with the terms and requirements of the contract. Upon having reached these conclusions the court dismissed the plaintiff’s complaint and directed judgment in favor of the defendant for the sum of $135, expenses incurred by her, together with costs, and an additional allowance of $100.

We think the facts of this case, which, in the main, are undisputed, will not uphold these several conclusions, and that the judgment appealed from should, consequently, be reversed.

While it is doubtless true that the enforcement of the specific performance of a contract may be said to rest largely in the discre- . tian of a court of equity, yet it is equally true that such discretion must he exercised not arbitrarily, but with due regard to established rules of equity, as well as to the circumstances of each particular case ; and if, notwithstanding all the objections raised by the defendant, it has been made to appear that the plaintiff had the legal title to the premises in question, and lias substantially fulfilled all the conditions which the. contract imposed upon him, or if it can be said that the defendant has waived the strict fulfillment of such conditions, a performance by her should be decreed. (Haberman v. Baker, 128 N. Y. 253.)

With this rule in mind the facts of the case can be considered in such manner as to enable us to more clearly appreciate to what extent, if any, they fail to sustain the conclusions reached by the learned trial court. And to that end let us first consider them so far as they bear upon the alleged ambiguity of the description of the various parcels of land referred to in the contract. It will be observed that in his written offer of exchange the plaintiff refers to his own premises as' “ 370 feet of land on the north side of Riley Street, 300 feet east of Humboldt Parkway,” and to those belonging to the defendant as two double houses on Carmine Place, and known as 15 and 25 Carmine Place in the city of Buffalo, Y. Y.” This description certainly admits of no doubt as to the city and street where the premises are located, and it would seem to indicate with tolerable certainty that, so far at least as the defendant’s premises are concerned, it covered all the land embraced in lots ISTos. 15 and 25 on Carmine place, the exact metes and bounds of which were easily ascertainable. The precise location of the plaintiff’s land is also made equally clear, for it is described as being 370 feet of land on the north side of Riley street, and 300 feet east of Humboldt parkway. This much is virtually conceded, but it is said that the description is defective and uncertain in that it does not state the depth of the lot, or any other data sufficient to enable it to be described by metes and bounds. But this omission, if it was in any wise misleading, as to which we entertain serious doubt, inasmuch as-no such objection was ever suggested by the defendant until she served her answer in the action, is one which could have been and was remedied by proof of extrinsic facts. (Waring v. Ayres, 40 N. Y, 357.)

It appears without contradiction that, before executing the contract, the defendant’s husband, who acted as her agent in the matter, made a personal inspection of the premises in question, and was thereby afforded ample opportunity to ascertain - not only their exact location, but also their boundary lines. Moreover, he was furnished by Mr. Downer, the agent of both parties, with a diagram of the same which showed their frontage, depth and location in feet and inches. He was also repeatedly informed by Downer that the lands were lOlj- feet deep, and after receiving this information said to him, “ it is all right, you can go on and draw up your contracts.”

These facts, together with others of like character, none of which are disputed, seem to identify the plaintiff’s premises beyond any question; and as was said in Waring v. Ayres (supra) they were admissible “ in order to apply, not to alter or vary a written agreement.” We fail to see, therefore, with these facts in the case-how it can be successfully contended that there was. sufficient ambiguity in the descriptive clauses of the contract to justify .the defendant in refusing to perform upon that ground. . .

- The objection that the plaintiff was unable to furnish a marketable title to his premises, while resting upon a foundation of more apparent stability, will, we believe, be foun.d upon careful examination to be equally untenable.

By reference to the written contract it will be seen that the ■defendant was to take the plaintiff’s land subject to a mortgage of $3,300 upon 220 feet of the easterly portion thereof, which mortgage was to run to the Homestead Loan Association, and subject also to a second mortgage upon the same portion of $660, and to 'another mortgage of $2,840 upon the remaining 150 feet of the westerly portion of the premises. With the exception of these three mortgages the plaintiff was to deliver a title free and clear of all incumbrances whatsoever on or before January 31, 1900, the same to be authenticated by a tax and title search.

Pursuant to this agreement the plaintiff caused a search to be ■made of his title, and this search was delivered sometime in the latter part of December, 1899, to the defendant’s agent who immediately placed the same in the hands of his attorney.

It appeared by this search that the mortgage of $3,300 had been .given to the Homestead Savings and Loan Association on the ,16.th day of December, 1899. It further appeared that there were two other mortgages in existence which were apparent liens upon the plaintiff’s premises, one of which was for $3,500 and the other for $1,400. As a matter of fact, however, at the time the search was delivered both of these mortgages had been paid in full and discharges thereof had been executed and were in the possession of the plaintiff, who, through inadvertence, had failed to have them recorded. Ho objection, however, was raised by the defendant to the title by reason of these mortgages until issue was joined in the action. Had there been it was within the plaintiff’s power to obviate the same by placing the. discharges upon record, as he in fact did sometime prior to the rendition of the judgment herein.

The search also showed that another mortgage of $449, which covered a portion of the plaintiff’s premises, had never been discharged of record. . This mortgage was executed by one Samuel Wilkinson on the 1st day of December, 1819. It was consequently more than eighty years old, and as there is no evidence whatever as to its terms, nor any proof of payment of either principal or interest thereon during the past fifty years, the presumption arises that the lien thereof had been extinguished, and consequently it does not constitute a valid objection to the plaintiff’s title. (Belmont v. O'Brien, 12 N. Y. 394; Katz v. Kaiser, 10 App. Div. 137; Knapp v. Crane, 14 id. 120.)

For the same reason it cannot be said that the mortgage of $1,325 given by one Jeremiah M. Landon to Anson .Adams on the 11th day of February, 1833, was available to the respondent as a defense to the action. This mortgage was seventy-five years old, and the defendant furnishes no evidence whatever to repel the presumption that it had been paid.

It was found by the learned trial court that there was no record or proof of any conveyance of the west part of the plaintiff’s premises from Ebenezer Johnson to Caleb Rogers, the grantor thereof by deed to Samuel Wilkinson in Hovember, 1818. The search, however, disclosed the fact that there was in existence an unrecorded deed from Johnson to Rogers; and by consent of counsel in open court this deed was regarded as in evidence upon the trial. Moreover, it was made to appear beyond all question that the subsequent grantees who held the title under Caleb Rogers have been in quiet p and undisturbed possession of the premises for upwards of eighty years, during which time their title has never been questioned. This proof was sufficient, in our opinion, to exclude to a moral certainty ■any right or claim on the part of the heirs of Ebenezer Johnson, he being one of the. mesne owners from whom the plaintiff’s title was derived. (Hamershlag v. Duryea, 58 App. Div. 288 ; Binzen v. Epstein, Id. 304; Kahn v. Mount, 46 id. 84; Ferry v. Sampson, 112 N. Y. 415.)

It further appears by the search that in 1817 one Phoebe Adams was the- owner of a portion of the premises in question, she having obtained title thereto by warranty deed from Ebenezer Johnson and wife. Subsequently, and in 183.2, certain parties claiming "to be the husband and heirs at law of Phoebe Adams assumed to convey the premises owned by her to Jeremiah M. Landon, who had previously acquired the title to so much thereof as was not owned by Mrs. Adams ; and it was held by the court below that there was a further defect of title by reason of the fact that it did not appear that Phoebe Adams was dead, or if dead that she left no will, or that the parties assuming to convey as her husband and heirs at law were, in fact, What they represented themselves to be and of full age.

The fact that Phoebe Adams took title more than eighty-five years ago, at which time she was in all probability at least twenty-one years of age, creates a pretty strong presumption that she has long since departed this life, and as the certified search makes no mention of any will, the further presumption may fairly be indulged that she died intestate. All question as to the sufficiency of the title which purports to come from her husband and heirs is set at rest by the affidavits of Susan W. Landon, the daughter of Jeremiah M. Landon, one of the plaintiff’s predecessors in title, and by the fact that Landon’s title, which was obtained at least- seventy years ago, has never been questioned.

It was further found that the plaintiff’s title was defective in that it was not made to appear that Joseph Adams had no wife at the time he joined in the conveyance to Landon, and for the further reason that no wife joined in the deed from George L. Ritt whose conveyance to Alois Schaefer on December 12, 1885, constitutes a part and parcel of the plaintiff’s chain of title. The obvious answer to the first of these findings is that Joseph Adams was the husband of Phoebe Adams, and as has already been shown at the time he conveyed to Landon his wife was dead and could not have joined in such conveyance; and so far as George L. Ritt is concerned his deed recited that he was unmarried, and there is not the slightest evidence in the case to suggest that this recital was not true.

We have thus considered seriatim the several objections upon which the defendant rests her right to defeat the plaintiff’s action, upon the ground that his title was imperfect, and in doing so have reached the conclusion that the facts to which we have adverted furnish a complete and perfect answer to each and all of them and show quite conclusively that they do not create such a doubt concerning the validity of the plaintiff’s title as would affect its value and interfere with its sale to a reasonable purchaser (Goodwin v. Crooks, 58 App. Div. 464), but there is still another circumstance, even more potent in its effect upon the defendant’s rights, to which we have alluded somewhat casually thus far, but one which it now becomes important to consider.

It is an undisputed fact that the search furnished by the plaintiff disclosed all the defects in his title of which the defendant now complains, and that the defendant had this search in her possession or in the hands of her attorney from the latter part of December, 1899, until long after the time fixed by the contract for its fulfillment. She, consequently, had ample opportunity to know as much . about the plaintiff’s title as she knows now, and yet she never indicated in any way that such title was not satisfactory until after this action was brought. On the contrary, it appears that the plaintiff having executed a deed of the premises a short time prior to the time for its delivery, authorized his son, who is a lawyer, to call the defendant’s husband and agent up on the telephone and inform him that the plaintiff was ready to perform. To this information Mr. Leslie replied that he could not perform for a few days for the reason that certain incumbrances were resting upon the Carmine place property which it would take some time to have discharged. A few days thereafter the son saw Leslie again and told him he had the deed in his pocket and that his father was ready to perform and then presented the deed, but Leslie replied, “ I am just in the same fix about that title. I can’t perform ; ” and when told that the time fixed for the performance had expired and that the matter ought to be closed up, Mr. Leslie stated the same thing in substance,, saying, Mr, Forsyth, I am just in the same fix I have been and it may be some little time before I can perfect my title.”

Finally, and on the tenth day of February following, Mr. Leslie in response to a letter from Charles E. Forsyth, the son, came to the latter’s office and.upon being told that the matter must be closed up, said, in substance, that his title was in the same predicament it had been in, and that he had not been able to close it up, and that this was his only reason for not closing it up.

This evidence, which is undisputed, establishes not only, a suf-r ficient tender of a deed by the plaintiff (Hun v. Bourdon, 57 App; Div. 351), but it also shows a refusal upon the part of the defendant to perform,, which refusal was based not upon any default or omission of the plaintiff, but solely upon the defendant’s inability to perfect her title. In these circumstances it will hardly answer for the defendant to come into a court of equity and set up other and entirely different reasons as a justification for her refusal to perform, for as we have seen some of the objections now raised and probably all of them could have been obviated had they been made when the plaintiff first notified the defendant of his readiness to fulfill. (Higgins v. Eagleton, 155 N. Y. 466.)

'Several objections other than those to which specific reference has been made are now urged as a defense to the action, but they are of minor importance as compared with those already considered, and as they relate mainly to matters which by the terms of the contract were left for adjustment between the parties until the day of' performance, we do not deem it necessary to consider them inasmuch as they were doubtless waived by the defendant’s refusal to perform. Moreover, we think we have already furnished sufficient reason for the conclusion we have reached that the defendant’s judgment cannot stand, '

McLennan, Spring, Williams and Hiscook, JJ., concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.  