
    *John Hyde and Elias Brown v. Alfred Kelley and others.
    An agreement to convey a lot, with one front upon a river and another upon a street, is not satisfied by a conveyance with a river front only.
    A vendor, where the vendee is content with the title, can not object to a specific performance, on the ground that a trustee of the bare legal title attendant on the inheritance and held expressly in trust for the owner, is not a party.
    
      This is a bill in chancery from the county of Cuyahoga.
    It is a suit for a specific execution of a contract for lands.
    The plaintiffs are the assignees of a contract made in 1831, by which Alfred Kelley agreed to sell to Enoch Burrows a lot in Cleveland, having a front of 120 feet on the Cuyahoga river, and “running back to a street to be laid out nearly parallel to said river, and at least 100 feet distant from the channel.” The purchase money was to be paid at stipulated timos, and the deed was to be made at the last payment in 1835. Stakes were set by the parties at the corners on the line where the street was expected to be laid, which line left the lot 100 feet deep.
    The lot sold was one of a range of water lots on the river. In 1832, the proprietors of the other lots in this range proposed to Kelley to alter his proposed plan so far as to lay the street at the distance of 120 feet from the river. He consented to adopt this scheme, upon receiving compensation for the land which would bo included in the lots by this extension. All the persons having interests complied with the terms except Burrows, who, after various equivocating negotiations, declined paying any further price, conceiving that his lot would extend to the proposed street, wherever it should be laid. ¡
    
    In 1833, the street was laid out, by the trustees of Cleveland, on Kelley’s petition. It was 66 feet wide, and left all the lots in this range 120 feet deep, except Burrows’. At this point an .offset was made in the street of 20 feet, so as to leave Burrows’ lot only 100 feet deep, and to increase the width of the street to 86‘ feet. 216] *In 1834, a petition was presented, to the trustees, by sundry persons, to make such alterations in this street as to make it of uniform width. Kelley was a party, assenting to this application, and it was granted. The effect of the altoi’ation was to vacate the street, upon a strip of land 20 feet wide, between the lot and that part of the street which remained open. This strip of land was conveyed by Alfred Kelley to T. M. Kelley and A. Walworth, in 1836, who purchased with knowledge of any claim the plaintiff may have to it.
    Objections to the execution of the contract are taken by the principal defendant, on account of Burrows’ failure to fulfill the representations he made, as inducements for the sale, but are not apparently relied upon-with much confidence. The points really disputed are the size of the lot, whether it is limited to the depth 
      ! of 100 feet, or whether it should extend to the street now laid, and what are the rights of the owners of the lot to the twenty feet strip, lying in its front.
    H. Foote, for the complainants:
    There is no pretense that the written agreement does not contain the contract as really made between the parties. Any inducements, therefore, that, may have led the vendor to enter into the contract are foreign to the present inquiry. The rule is well settled that all previous negotations, resting in parol, are merged in a written agreement. Packhurst v. Van Courtland, 1 Johns. Ch. 273; S. C., 14 Johns. 15; Jones v. Warner, 11 Conn. 40; Powell v. Edwards, 12 East, 6; Dean v. Mason, 4 Conn. 428; 2 Stark. Ev. 543. Nor will the chancellor encourage a vendor in any attempt at disabling himself to complete his contract. The alteration of the street, made at the instance, or with the assent, of Kelley, can. in no way affect the rights of the vendee. When the contract was made, equity regarded the vendor as a trustee of the estate-for the vendee. Sug. Vend. 211 ; 1 Story’s Eq. 383; Howard v. Babcock, 7 Ohio, 78, pt. 2; Green v. Smith, 1 Atk. 572; Pollexfen v. Moore, 3 Atk. 272. And a purchaser of the estate so contracted to be sold, with notice of the agreement, is ^equally [217 with the vendor himself, a trustee for the purchaser, or his assigns. 2 Story’s Eq. 92, 459; Howard v. Babock, 7 Ohio, 78, pt. 2; Murray v. Ballou, 1 Johns. Ch. 566; Brown v. Champion, 6 Johns. Ch. 398. The plaintiffs, therefore, as assignees of the original vendee, had a right, in 1835, to demand a deed from Kelley, for a lot, with a street front and a river front, and this right is n.ot impaired either by the alteration of the street, or by Kelley’s subsequent sale to his co-defendants.
    It is no objection to a specific performance, that a public way has been laid out over the .land. Fairfield v. Williams, 4 Mass. 428; 2 Hill. Abr. 73.
    S. J. & John W. Andrews, for the defendants,
    insisted that a conveyance made and tendered by A. Kelley, calling for a line 100 feet from the channel of the river, was a faithful compliance with his part of the contract; that Burrows, or those representing his right, had no reason to complain if his lines were shorter than the adjoining proprietors’, inasmuch as they had paid Kelley an extra price for their additional twenty feet, and that Burrows having refused to allow any further compensation for the proposed enlargement of his lot, Kelley was under no obligations to bestow upon him privileges which others were willing to pay for.
    They further insisted that, under the act to provide for the re- ■ cording of town plats, 29 Ohio L. 351, sec. 6, by the location of the street, the legal title in the twenty feet was vested in the city of Cleveland, and the city of Cleveland not being a party, the present bill can not be sustained. Story’s Eq. Pl. 187, secs. 207, 208.
    R. Hitchcock and E. T. Wilder,.in reply,
    denied that a conveyance by Kelley of any lot, not fronting on a street, would be a compliance with the contract; that he stipulated with Burrows for a lot, with a river front and a street front, and that Kelley can not avoid this stipulation by any location or alteration of the 218] streets, either with or without the aid of the *city of Cleveland. That the contract as made was fair, and the vendee has a right to a specific execution of it, and that Kelley can not call upon the court, either to make a new bargain, or to compel Burrows to pay for twenty feet of ground more than he purchased. They cited Martin v. Lewis, 1 Marsh. (Ky.) 103; Dale v. Pope, 4 Littell, 167; Fishback v. Woodford, 1 J. J. Marsh. 84; Hunt v. Rousmaniere, 1 Pet. 1; Gillespie v. Moon, 2 Johns. Ch. 585; Peck v. Smith, 1 Conn. 103; Wyman v. Mayor of New York, 11 Wend. 486; In the matter of Thirty-second Street, 19 Wend. 128; Hooker v. Utica and Men. Turnpike Co., 12 Wend. 371; Corning v. Lowerre, 6 Johns. Ch. 439; 2 Story’s Eq. 206.
   Lane, C. J.

The spirit with which Burrows has treated the contract has not been very fair, and he has exhibited very little disposition to reconcile all interests with a due regard to justice. A very honest man woqld have consented to pay an additional price, for advantages beyond the contemplation of the contracting parties. But the plaintiff's, standing in his place, having performed all he stipulated, and paid all he contracted to pay, are claiming from the defendant such benefits as result by law from the terms in which the agreement was framed. We have no power to make a new contract between the parties, nor can one of them be compelled against his consent to change that already in existence; we can only enforce his legal rights, as defined and interpreted by the rules of that system we sit here to administer.

By the terms of this contract, the purchaser, on payment duly made, acquired the right to demand from Kelley, in 1835, the conveyance of a lot, 120 foot long and not less than 100 feet wide, having both a river front and a street front. The street was not then laid, but was to be laid “nearly parallel to the river.” Although stakes were set by the parties on. the easterly line of the lot, this act is not regarded by the court as fixing the line of the lot, but as marking its supposed boundary; by the nature of the transaction, this line could not be ultimately fixed until *tho street was laid. The vendee was not obliged to accept [219 a conveyance until 1835, and if then he acquired a lot of this size, having a river front and a street front, he would obtain all for which he contracted; the width of the street was not stipulated; the rights secured were, accessibility on one side by water, and on the other by a street. And the vendor bound himself by this contract that he would possess the ability to satisfy these conditions in 1835.

It seems to us, that if the street of 1833 had remained until 1835, i conveyance to its line, being 100 feet from the channel, would have been an entire fulfillment of the obligation, notwithstanding the other lots were of greater depth, and the vendee’s line were thrown back from the line of the others. For he would have obtained what he contracted to receive, and when he rejected the enlargement upon such terms as others were willing to comply with, the vendor was under no obligations to bestow upon him additional advantages, such as others had secured by a price.

But the situation of the property has been materially altered since 1833. A part of the street is vacated, access to the front of the lot, by the street, is cut off, and the twenty feet strip between it and the lot has been conveyed to others; and these alterations have occurred by the agency or the consent of the vendor. Now the law exacts from a vendor, while the contract remains executory, the ability to fulfill it in good faith, according to its substantial meaning. The vendor in this case gave the purchaser the right to demand such a conveyance, in 1835, as would give him a street front. The street of 1833 would give such a front, but this had been so altered, that a conveyance of a lot 100 feet deep would give no such advantage, and that a conveyance to a line where a street was once run, would be no fair fulfillment of the engagement. If-this alteration had been made by some paramount power, or from some cause not within the control of either party, it would raise a different question. But it is impossible to overlook the fact, that this alteration was brought about by the agency 220] or the consent of the principal defendant, he assuming *to act as the owner of the lot. If he had originally caused the street» to be run at the distance of 120 feet from the channel, a conveyance of the lot on such a street would have been a fair performance of his obligations; if, by his agency, or through his consent, the street is located at that distance, at the time when he is bound to convey, it seems to us that he can not satisfy his engagements with the purchaser, except by a CQnveyanee of land extending to such a street. The other defendants having purchased with a knowledge of the plaintiff’s claim, he may require from them all which he may demand of the vendor.

It is said in argument that no conveyance of the twenty feet strip should be directed, because by the operation of the statute (29 Ohio L. 351) the fee is vested in the city of Cleveland. The soundness of the objection is not felt by the court. It might be answered that the vendor can not resist making a deed, which ho has stipulated to execute, because it conveys no title ; for he can encounter no greater liability from a deed, even with warranty than arises on the rescission of an executory contract, although he often is subjected to less ; and a bare legal title, held expressly in trust for the owner of the land, and attendant on the inheritance, is never held an obstacle to the specific execution of a contract, if the purchaser is content with the title.

The facts of the case, therefore, show the plaintiff’s right to a decree, without making it necessary to decide any questions as to the extent of the limits of town lots bounded by a street.

Decree for the plaintiff.  