
    VERNON K. STEVENSON, Plaintiff and Respondent v. JAMES K. SPRATT and Others, Defendants; SPRATT, Appellant.
    I. SPECIFIC PERFORMANCE: ACTION BY VENDEE.
    1. Damages, Judgment fob.
    1. When improper.
    
    
      a. When it does not appear on the trial that the vendor is unable to perform. v
    1. Evidence, what not sufficient to sTww inability at that time.
    
    
      
      a. Proof that vendor said, if he had a certain sum of money, he thought he could perform, and a month or two afterwards (but some months before suit brought) reported himself unable to perform, saying he thought there was so much more lien against his property that he could not perform, that he would be ruined, held insufficient.
    Semble—Such proof is insufficient to establish inability at the time of the declarations.
    2. When proper.
    
    When it appears on the trial that the vendor is unable to perform.
    3. What items can be declared a lien on the land. Advances made by the vendor on the purchase-money can be so declared to the extent of the vendor’s interest. But general, damages, such as counsel fees for examination of the title, cannot.
    II. Trial by the Cohrj?.—Findings of Law, Judgment varying prom.
    1. Irregular, if the.judgment is not in conformity with the findings of law.
    Semble—Substantial error for which the judgment will be reversed.
    2. Irregularity or Brror, when disregarded, on Appeal.
    
    1. When the non-conformity is caused by an occurrence happening after the findings of law, and it is conceded on appeal to have happened, and the judgment is in conformity with what the findings ought to have been if the Occurrence had happened before the trial, the irregularity or error will he disregarded. a. Application cf principle. Where, in an action for specific performance by vendee, the court found, as matter of fact, that the vendor (the defendant) was unable specifically to perform, and then found, as matter of law, that the vendee (the plaintiff) was entitled to recover of the defendant a certain sum for damages, that the same be declared a lien on the premises, that the premises he sold and proceeds applied to the payment of said sum, and that plaintiff have judgment against defendant for any deficiency; and after these findings, but before judgment, the premises were sold under a prior mortgage lien, leaving certain surplus moneys (which fact was conceded on the appeal), a judgment reciting the sale under the mortgage, producing surplus moneys, and adjudging the sum mentioned in the findings to be a lien on the surplus, and in case of a deficiency in the amount of the surplus, that plaintiff recover from defendant the amount of the deficiency, was sustained, with such modifications as to the amount declared a lien on the surplus, as would have been made in the amount declared a lien on the land if the judgment had been entered in conformity with the findings.
    
      Before Monell, Freedman, and Curtis, JJ.
    
      Decided April 5th, 1874.
    Appeal from judgment.
    The action was, first, for the reformation of a written contract for 'the sale of land ; and, second, for the specific performance of the contract when reformed.
    The complaint alleged that in September, 1870, the plaintiff and the defendant Spratt entered into an agreement, wherein the defendant agreed to sell and convey to the plaintiff certain premises in the city of New York, and to perform certain work in and upon the premises.
    The mistake in the contract, as alleged, was in describing the premises.
    The plaintiff alleg’ed performance on his part and re fusal by Spratt.
    The relief demanded was that the mistake in the description be corrected, and that the defendant convey the premises to the plaintiff.
    The defendant Spratt, by answer, admitted the error in the description and consented to a reformation of the contract; and then avowed that he had been always willing to perform his contract with the plaintiff, and that the plaintiff well knew that the defendant was indebted to various parties who had liens on the house and lot, and agreed to furnish the money to pay off the same, to the amount of five thousand dollars mentioned in the contract. That he had only paid $1,000, and the defendant could not give a conveyance that would convey such title as required by the contract while such liens existed on the property.
    That the plaintiff then declined furnishing more money, and the defendant was and is anxious to fulfil the contract, and was only prevented by disappointments in obtaining money.
    
      And that the defendant is willing and consents to a decree or judgment for a specific performance of the said contract as prayed in the complaint, at such time as he can and shall be able to make a good title.
    The action was tried by the court, without a jury.
    The following are the facts and conclusions of law.
    That the plaintiff and defendant' entered into a contract, the defendant to sell and the plaintiff to purchase house and lot known as number 24 West Fifty-first Street. That said contract was in writing, and bore date September 2d, 1870. That there was an error and mutual mistake in the description of the premises in said contract, in that the point of beginning should have been stated as commencing at a point on the southerly side of Fifty-first Street, distant 378 feet west from the south, westerly corner of Fifth Avenue and Fifty-first Street, instead of 398 feet, as was in said contract stated.
    That at the time appointed, the plaintiff was ready and willing to fulfil on his part, but the defendant was not ready, and neglected and refused to fulfil the said contract, and was then and has ever since remained unable to perform the said contract on his part.
    That plaintiff on the 2d September, 1870, paid the defendant on said contract the sum of one thousand dollars, and incurred liabilities for examination of the title of defendant to said premises, to the amount of two hundred and thirty-five dollars and twenty-eight cents. That interest on said one thousand dollars from September 2d, 1870, to April 22d, 1872, the day of this trial, is one hundred and fourteen dollars and seventy-two cents.
    Conclusion of law.
    That the defendant being unable to specifically perform the contract, the plaintiff is entitled to recover of the defendant the sum of one thousand three hundred and fifty dollars, and that the same be declared a lien on the premises described in the complaint according to the corrected description thereof, and that the description thereof be corrected accordingly, and that said premises be sold, and the proceeds of sale applied to the payment of said sum, and that plaintiff have judgment against the defendant for any deficiency.
    The evidence of the defendant’s inability to perform the contract was contained in the plaintiff’s testimony, and was as follows:
    
      Question. Have you had any conversation with the defendant with respect to his ability to perform his contract?
    A. I have, twenty times.
    Q. What did he say with respect to his ability to perform his contract ?
    A. He came to get an additional amount of money, and said he thought with that he could perform. At first I gave him $500 and he paid a lot of liens he said were against the property, and said that had taken it all up, and if I could let him have $500 more he thought he could perform. I let him have $500. He was some time coming back—a month or two. When he did come he reported himself unable to perform. He thought there was so much more lien against his property that he could not perform, that he would be ruined; he didn’t know how it would be.
    Q. You paid him the $500 mentioned in the contract ?
    A. Yes, sir.
    Q. And in addition to that another $500 ?
    A. Yes, sir, more than I agreed to.
    The plaintiff was allowed to prove, against the defendant’s objection, that he had paid three hundred and fifty dollars for examination of the title.
    The action was tried in April, 1872, and the findings made and filed June 10th, 1872, on which latter day the following judgment was entered (after reciting the findings of fact):
    “ It is considered and adjudged—
    “ That the contract between the plaintiff and the defendant, James K. Spratt, mentioned in the complaint herein, be, and the same is hereby, reformed and corrected in respect to the description of the premises therein described, so that the said description shall read as follows, to wit: ■ All that certain lot, piece or parcel of land situate in the 19th ward of the city of New York, and which taken together is bounded and described as follows, to wit: Commencing at a point on the southerly side of Fifty-first Street, distant three hundred and seventy-eight feet west from the southwesterly corner of Fifth Avenue and Fifty-first Street (known as No. 24), thence running southerly and parallel with Fifth Avenue, one hundred feet and five inches ; thence running westerly and parallel with Fifty-first Street, twenty-seven (27) feet and six (6) inches ; thence running northerly and parallel with Fifth Avenue, one.hundred feet and five inches ; thence running easterly along the southerly side of Fifty-first Street, twenty-seven feet six inches, to the point of beginning.”
    And it appearing that the defendant, Spratt, is unable specifically to perform the said contract and to convey a title thereto, the said premises having been sold -under a prior mortgage lien, leaving certain surplus moneys : and it appearing that the defendant, Spratt, is indebted to the plaintiff for moneys paid on said contract and pursuant thereto, in the sum of thirteen hundred and fifty dollars and interest from April 22d, 1872, it is on the like motion considered and adjudged that the said sum of thirteen hundred and fifty dollars be and the same is hereby declared a lien on said surplus moneys arising from a sale of said premises under a prior mortgage lien, from and after the date of the filing of the lis pendens in this action, to wit, from and after the 29th day of April, 1871, and that in case of any deficiency in the amount of said surplus moneys to satisfy this decree, that the plaintiff recover of the defendant, Spratt, the amount of such deficiency, and have execution therefor.”
    
      It does not appear upon what evidence the fact was founded, as recited in the judgment, “that the premises having "been sold under a prior mortgage lien leaving certain surplus moneys.”
    The defendant, Spratt, excepted to the findings and appealed from the judgment.
    
      Mr. H. Brewster, for appellant.
    
      Mr. W. H. Peckham, for respondent.
   By the Court.—Monell, J.

Upon the pleadings in this action, and without regard to any of the evidence, the plaintiff1 was entitled to judgment for the specific performance of the contract. But the court found as a fact, that at the time appointed for the performance of ■ the contract, the defendant neglected and refused to perform, and has ever since remained 11 unable to perform.”

The evidence to support the finding of inability to perform was very slight, and were it now material to the result, I should be unable to regard it as sufficient. The only evidence was to the effect that when the last payment was made to the defendant, he said that if he could have the money, he thought he could perform. A month or two afterwards, he reported himself as unable to perform. “He thought there was so much more lien against his property that he could not perform, that he would be ruined.”

The inadequacy of the evidence, however, is not of importance, as at most it relates to a supposed inability to perform at some time before suit brought, and there was nothing to show that such inability continued down to the time when judgment was entered.

If, therefore, at the time performance was decreed, the defendant could convey a title free from encumbrances, a specific performance of the contract should have been required (Pierce v. Nichols, 1 Paige, 244; Brown v. Haff, 5 Id. 235). , These cases proceed upon the principle that it is not necessary for the vendor to have title when he contracts to sell, but may acquire the title at any time afterwards, or may otherwise put himself in condition to comply with his contract (Fry on Specific Perf. p. 390, § 660).

Upon these principles, and under the proofs in the case, the appropriate judgment would have been for the specific performance of the contract.

Treating it, however, as if it had been shown that the defendant could not perform, the court held as its conclusion of law, that the plaintiff should recover the money he had paid towards the purchase price of the property, and also a sum for damages, making the amount a lien upon the premises contracted to be sold, and directing their sale, and payment out of the proceeds.

It was undoubtedly competent for the court, having ascertained the defendant’s inability to perform, to retain the action, and to ascertain and award damages for non-performance (Morss v. Elmendorf, 11 Paige, 277; Clark v. Rochester, &c., R. R. Co., 18 Barb. 350, 356; Barlow v. Scott, 24 N. Y. R. 40); and if such inability to perform, at the time of the judgment, had been made to appear at the trial, the award of damages would have been entirely proper.

For the advances made by the plaintiff, he acquired a lien upon the land, to the extent of the defendant’s interest (Wythes v. Lee, 3 Brew, 396; Blore v. Sutton, 3 Mer. 237; Fry on Spec. Per. 495, § 939).

Such lien, however, does not exist in respect tó general damages, and it was erroneous to declare the lien of such damages in this case.

Had the judgment been entered in conformity to the decision of the court, as contained in the conclusion of law, it would, for the reasons already assigned, be difficult to sustain it. But the judgment does not follow the decision. After reciting that “it appearing that the premises having been sold under a prior mortgage lien, leaving certain surplus moneys,” the judgment declares the lien for the advances and damages to be wpon such surplus moneys.

The evidence does not show any sale under the prior mortgage, nor is there any finding of fact to support the statement, and it is left wholly to inference and conjecture how the court, when it pronounced judgment, came in possession of the fact.

It is clear that this nonconformity of the judgment to the decision was an irregularity, if not indeed a substantial error, which should lead to a removal of the judgment. In Loeschigk v. Addison, 3 Robt. 331, this court reversed a judgment because it contained provisions not authorized by the decision. In that.case, however, it appeared that all the issues had not been disposed of by the decision. And in Chamberlain v. Demsey, 9 Bosw. 212, a judgment was reversed for a similar reason, and the power to do so was fully recognized.

But upon the argument of this appeal, it was conceded by the appellant’s counsel that after the trial, and before the entry of judgment, the defendant’s title had been divested, and his power to convey taken from him, by a foreclosure sale under an outstanding mortgage, and that the recital of such fact in the judgment was correct.

Under these circumstances the appellant could not be benefited by a new trial, and a reversal of the judgment would necessarily require a re-trial, when the result would be the same as now.

The judgment, however, should be modified by restricting the specific lien upon the surplus moneys to the advances only, and to the extent only of the defendant’s interest therein; leaving the general damages a general lien only.

As so modified, the judgment is affirmed, hut without costs of the appeal.  