
    Addison G. Jerome, plaintiff and respondent, vs. John Scudder, defendant and appellant.
    1. The existence of outstanding leases, upon premises contracted to be sold, is no reason for refusing a judgment for a specific performance, against the vendor, so far as he is able to carry out the agreement.
    2. A decree for a specific performance by a vendor should not direct the defendant to procure releases from parties over whom he has no control.
    3. The judgment in such a case should direct a reference to ascertain whether the defendant can give a good title: also the amount of any incumbrance which is a lien on'the premises, and can he discharged by the payment of money; and the deduction which should be made from the purchase money as compensation for the outstanding terms of tenants. It also should require the payment to the referee, by the plaintiff, of so much of the purchase money as may be necessary to pay off all incumbrances which can be discharged, and-to the defendant, or into court, for his benefit, of the residue thereof, after deducting the amount to be allowed for such compensation. It should also provide for the discharge, by the referee, of the incumbrances which can be so paid off, and the execution, within a reasoriahle time, by the defendant to the plaintiff, of a good and sufficient conveyance of the premises, &c. to be delivered upon the payment of the sums before mentioned.
    (Before Robertson, Ch. J., and Garvin and McCunn, JJ.)
    Heard February 19, 1864;
    decided April 23, 1864.
    This action was brought to compel the defendant to convey a lot of land, twenty-five feet wide by ninety-two feet, or half the block in length, known as Ho. 98 West Twentieth street, in the city of Hew York, for the consideration of $4750.
    The complaint states that the defendant, on the 8th day of July, 1863,' was, and ever since has been, the owner in fee', of the said lot of land, with the building thereon. That, on the said 8th day of July, the plaintiff and the defendant entered into an agreement in writing for the sale by the defendant to the plaintiff, and the purchase by the plaintiff of the said house and lot. A copy of the agreement is set forth. By that agreement the defendant agreed to sell the said lot, with the building, to the plaintiff, for $4750, which the plaintiff agreed to pay to the defendant on the 25 th day of July, “ when the deed will be delivered.” The defendant, “ on receiving such payment, at the time and in the manner above mentioned, shall ” execute and deliver to the plaintiff a proper deed for the conveying to him the fee simple of the premises, free from all incumbrance. The plaintiff alleges, that on the 25th of July he was, and ever since has been, ready to accept a deed of the premises, free from incumbrace, and pay the price mentioned in the agreement; but the defendant has not conveyed, or offered to convey the premises, free from incumbrance, but the premises were, on-the 8th day of July, and still are, subject to certain mortgages, which are liens and incumbrances. That the plaintiff has offered to comply with the agreement, and to receive a conveyance of the premises, free from incumbrance, and to pay the price therefor, and has demanded of the defendant that he should comply with the terms of said agreement, and should convey the premises to the plaintiff in fee simple, free from all incumbrance, offering, on such conveyance, to pay the price, &c.; but the defendant has neglected, &c. and still neglects so to do, and continues in the occupation and possession of the premises. The plaintiff demands judgment that the. defendant be compelled specifically to perform the said" agreement, &c.
    The answer, first, denies that the plaintiff, on the 25 th of July, or at any time, was ready to receive a deed or to pay the price; or that the defendant has not offered to convey the premises free from remembrance as alleged in the complaint; or that the premises were subject to certain mortgages, except as in the answer set forth ; or that the plaintiff has offered to comply with the agreement, or demanded of the defendant that he should comply, or offered to pay the price, &c. otherwise than as admitted. Second, that on the 8th of July a mortgage, dated the 11th and recorded the 12th of December, 1855, made by John Saylor to Elizabeth Judah, for $2500, existed upon the premises, which the defendant desired should remain until the plaintiff should be ready, on the 25th of July, to pay the $4750. The defendant was ready and willing, on the 25th of July, to pay off, or cause to be paid off, the said mortgage, upon the plaintiff being ready to complete the purchase, of which mortgage the plaintiff had notice on or before the 8th of July. That there was also a mortgage, dated and recorded the 12th of December, 1855, made by the said Saylor to the defendant, for $1017.80, of which mortgage the defendant has been the sole owner and holder ever since the same was made, of which mortgage the plaintiff also had notice on or before the 8th of July. The said Saylor and wife, by deed dated the 24th of October, 1862, acknowledged the 14th of Sovember, 1862, conveyed the premises in fee to the defendant. Third. That the plaintiff, not having applied for, nor demanded a deed, nor offered to pay, nor tendered the sum of $4750, or any part thereof, on the 25th of July, the defendant executed a proper deed for conveying to the plaintiff the fee simple of the premises, free from all incumbrance, went to the place of business of the plaintiff, at 22 Exchange place, tendered the deed, offered to deliver the same, and offered to perform and fulfill the contract on his part, upon the plaintiff performing and fulfilling the contract on his part. The plaintiff was not ready to take or receive the deed, nor to pay the sum of $4750, or any part thereof, on the 25th of July, or at any other time (except as admitted.) The defendant claims that the plaintiff abandoned the contract bn the 25th of July, and admits that the defendant is willing to consider the same abandoned. The defendant admits that he received a letter frbm the plaintiff on the 14th of August, offering then to perform' the contract, and requesting a deed from the defendant, but without paying or tendering any money, which was the only offer of the plaintiff. Wherefore the defendant demands that the complaint be dismissed, &c.
    The justice, before whom the action was tried,'without a jury, found the foEowing facts, viz :
    
      First. That on the 8th day of July, A. D. 1863, when the agreement mentioned in the pleadings was made and entered into between the parties, the premises, mentioned and described in the said, agreement, were, and ever since have been, and still are incumbered by the mortgages, which are mentioned and set forth in the answer of the defendant, and also by the rights of certain tenants, who were, on the said 8 th day of July, 1863, and have ever since been, and still are, in possession of the premises, under and by virtue of certain lettings or leasings by the defendant, with the right to continue therein as such tenants, until the first day of May, A. d. 1864 ; and that by reason thereof the said defendant has not, since the said 8th day of July, 1863, been able to tender, nor has he tendered the proper deed, for the conveying and assuring to the plaintiff the fee simple of the said premises, free from all incumbrances.
    
      Second. That on and prior to the said 25th day of July, A. d. 1863, the plaintiff was, and ever since has been, and still is, ready and willing and anxious to receive such conveyance of the premises, and to pay therefor the price stipulated to be paid therefor in and by the agreement; and that both prior to the said 25th day of July, 1863, and subsequent to that date, before the commencement of this action, the plaintiff offered to pay the defendant the purchase price of the said premises, on receiving a conveyance thereof, free from all incumbrance, pursuant to the terms of said contract; and that the plaintiff was prevented' from paying for the premises, by the failure and inability of the defendant to convey the premises to him free from incumbrances.
    The judge found, as a conclusion of law, from the foregoing facts, and did thereby adjudge and determine, that the plaintiff was entitled to a decree, that the defendant be required and compelled specifically to perform the contract or agreement of sale set forth in the complaint; and that, upon the plaintiff’s performing said agreement on his part, and paying the defendant the price of said premises, as fixed in and by the said agreement, the defendant do, within ten days after the entry of the said judgment or decree, execute, acknowledge and deliver to the plaintiff a proper deed for the conveying and assuring to the plaintiff the fee simple of the premises, free from all incumbrances, which said deed should contain a general warranty and the usual full covenants ; and that the said defendant do discharge and remove all incumbrances upon the premises up to the day of the delivery of the said deed to the plaintiff ; and that the plaintiff recover against the said defendant his costs of this action.
    Judgment being entered accordingly, the defendant appealed.
    
      S. W. Judson, for the defendant, appellant.
    
      L. Birdseye, for the plaintiff, respondent.
   By the Court,

Robertson, Ch. J.

The plaintiff seeks as vendee, to enforce in this action performance by the defendant, who is vendor, of a contract for the sale of land. In such contract a day was fixed on which the defendant was bound to give a deed of the land, free from all incumbrances, with full covenants and warranty. There was nothing on the face of the contract to show that time was essential in its performance. (Benedict v. Lynch, 1 John. Ch. 374. Winne v. Reynolds, 6 Paige, 410. Cases cited in Fletcher v. Button, 4 Comst. 396, and Burwell v. Jackson, 5 Seld. 535.) If it had been, the defendant was never in a condition to perform on his part, as the premises continued from the time of sale subject to two mortgages and outstanding leases ; and therefore he could not avail himself in equity of any delay on the plaintiff’s part(Seaward v. Willock, 5 East, 202, per Ellenborough, Ch. J. Lovelock v. Franklyn, 8 Q. B. 371.) The attempt at a tender made by the defendant was unavailing, (Parker v. Parmele, 20 John. 130 ; Robb v. Montgomery, Id. 15 ; Hudson v. Swift, Id. 24, 27 ; Fuller v. Hubbard, 6 Cowen, 13, 17 ; Same v. Williams, 7 id. 53 ; Connelly v. Pierce, 7 Wend. 129 ; Winne v. Reynolds, ubi sup.;) either to put the plaintiff in default or to discharge himself.

The two mortgages in this case,- if past due, can be paid off; or if not, their depreciation of the value of the purchase is capable of being measured pecuniarily. The leases which are outstanding may be made a subject of compensation at the election of the vendee, the plaintiff. It does not appear that he knew of their existence when he bought, although the defendant did. The existence of such incumbrances is therefore no reason for refusing a specific performance of the contract by the defendant so far as he can carry it out.

But the court ought not to have adjudged that the defendant should procure releases from parties over whom he had no control, (Brown v. Haff, 5 Paige, 241 ; Mills v. Van Voorhis, 23 Barb. 125,) and the judgment at special term was therefore erroneous in that respect. The judgment should have directed a reference to ascertain whether the defendant could give a good title; also the amount of any incumbrance which is a lien on the premises and can be paid off; and the deduction which should he made from the purchase money, as compensation for the outstanding terms of tenants ; it also should have required the payment to the referee hy the plaintiff of so much of the purchase money as might be necessary to pay off all incumbrances, which could be discharged, and to the defendant or into court for his benefit of the residue thereof, after deducting the amount to be allowed for such compensation. It should also have provided for the discharge by such referee of the incumbrances which could be so paid off, and the execution within a short time by the defendant to the plaintiff of a good and sufficient conveyance of the premises in fee simple, with full covenants and warranty, to be placed in the hands of such referee to be delivered to the plaintiff, upon the payment by him of the sums before mentioned.

The judgment in this case should be so modified, without costs on the appeal to either party.

The judgment of the general term to be settled by one of the justices, on two days’ notice by either party.  