
    Ledett A. Bostwick v. Emily P. Beach, Ex’rx, el al., Ex’rs, etc.
    
    
      (Court of Appeals,
    
      Filed November 23, 1886.)
    
    1. Contract by executors—Specific performance—Power of sale.
    Where the executors of the will of a deceased person, empowered by the terms of the will to sell his real estate, enter into an executory contract for such sale, performance of such contract may be enforced in equity at the suit of the purchaser. Such a contract is in effect an execution of the power.
    
      %. Same—Mortgage existing on property the subject of the contract NO OBSTACLE.
    The existence of a mortgage upon the property is no obstacle to the execution of the cont act, as a purchaser for full value is entitled to have incumbrances removed out of the purchase money.
    3. Same—Compensation.
    If a seller of land is not able to comply fully with the contract, either in respect to the quantity of land or the extent of the estate, the court will, at the election of the buyer, decree specific performance of the contract so far as the same can be performed, awarding compensation to the purchaser by way of abatement from the purchase price, for any deficiency in title, quantity of land or other matter touching the estate, the value of which are capable of being ascertained, and thus compensated without doing injustice to either party.
    4. Same—Por dower right—Implied consent.
    The widow of the testator being also executrix, and as such one of the parties to the contract of sale, by joining therein without any reservation of her dower right, consented to make a good title to the purchaser, and to look to the purchase money as a substitute for the land for her dower right therein.
    
      5. Same—Rent of premises —Belongs to purchaser when—Interest.
    When the purchaser is ready and willing to perform and the delay is on the part of the vendor, the purchaser is entiled to the rents and profits from the time when, according to the terms of the contract, possession should have heen delivered, or if the vendor has remained in possession, he is chargeable with the value of the use and occupation from the same period, and the purchaser is chargeable with interest on the purchase money if it has remained in his hand unappropriated. But where it has heen appropriated, and notice thereof given to the vendor, and the purchaser has received no. interest thereon, he is not liable to pay interest to the vendor.
    ' Appeal from judgment of general term, fourth department, reversing a judgment entered for plaintiff on trial at special term.
    
      C. D. Adams, for app’lts ; A. H. Sawyer, for resp’t.
    
      
       Affirming, 31 Hun, 343.
    
   Rapadlo, J.

The will of Nelson J. Beach contained a valid power in trust to his executrix and executors to sell and convey his real estate," and declared that the sale should take place at an early day. Until such sale the testator directed that his wife retain possession of the house occupied by him, for herself and her unmarried daughter, together with a certain portion of his farm.

The testator died February 22, 1876, seized in fee of the farm in question, which contained about two hundred and seventy-five acres of land, of the value of about $11,000, and was subject to a mortgage of $900 and the widow’s right of dower.

Although, under the will, it was the duty of the executrix and executors to sell this farm at an early day, no sale appears to have been made until December 27, 1881, when the contract upon which this action was brought was entered into. In the meantime the widow and executrix, Emily P. Beach, remained in the substantial occupancy of the farm, and the estate received no income therefrom, but bore the charge of interest on the mortgage, and insurance and repairs upon the buildings. That state of affairs continued at the time of the commencement of this action.

The receipt signed by the executrix and executors on the 27th day of December, 1881, and set forth in the complaint, constituted, in our judgment, a valid contract for the sale of the farm to the plaintiff. It contained all the essential elements of a contract, and was very similar in form to the contract set out in the case of Westervelt v. Matheson (Hoff. Ch., 37), and therein adjudged to be sufficient.

We entertain no doubt that where the executors of the will of a deceased person, empowered by the terms of the will to sell his real estate, enter into an executory contract for such sale, performance of such contract may be enforced in equity, at the suit of the purchaser. The contract of sale is in effect an execution of the power, and confers upon the purchaser an equitable title to the land sold, and the court -will compel the executors to perfect that title by a conveyance, where the contract is fair and for a sufficient consideration, and there is no default or loches on the part of the purchaser. We are not referred to any authority directly in point; but the cases of Bowen v. Trustees of Irish Presbyterian Church (6 Bosw., 245), and Demarest v. Ray (29 Barb., 563), are analogous in principle. There can be no valid objection, therefore, to decreeing the execution and delivery to the plaintiff, by the executrix and executor, of a deed conveying all the title which the testator had, at the time of his decease, to the farm in question, on his complying with the terms of the sale. This, however, would not accomplish complete justice. The purchaser is entitled to a clear title, free of incumbrances, where he agrees to pay the full value of the property. Rawle Cov., 430; Burwell v. Jackson, 5 Seld., 535.

The mortgage of $900 presented no obstacle to the carrying out of the contract of sale, for the rule is well settled, as laid down in Westervelt v. Matheson (Hoff. Ch., 37), that a purchaser for full value is entitled to have incumbrances removed out of the purchase money. So far as the mortgage is concerned, that disposition of the case would do complete justice between the parties, for the estate of the testator would receive the full value of his interest at the time of his decease, such interest having been subject to the mortgage.

As to the dower right of the widow a more complicated question is presented. If the purchaser should elect to carry out his purchase, and take title to the land subject to that dower right, he would clearly be entitled to do so, and in that event would be entitled to an abatement from the contract price equal to the gross cash value of the right of dower If a seller of land is not able to comply fully with the contract,' either in respect of the quantity of land or the extent of the estate, the court will, at the election of the buyer, decree specific performance of the contract so far as the same can be performed, awarding compensation to the purchaser, by way of abatement from the purchase price,, for any deficiency in title, quantity of land, or other matters touching the estate, the value of which are capable of being ascertained, and thus compensated without doing injustice to either party. Upon this principle specific performance has been decreed where there was an outstanding dower right which the vendor could not control, and the purchaser elected to take subject to that incumbrance. The gross value of the dower right has been adjudged, in such cases, to be the measure of compensation to be allowed to the purchaser by way of abatement from the price. Woodbury v. Luddy, 14 Allen, 1; Davis v. Parker, id., 94, 98, 104.

If, in the case now before us, the widow had not been a party to the contract of sale, she could not be compelled to accept, in lieu of dower, a money compensation out of the proceeds, and the only course open to the purchaser would have been either to reject the purchase in toio, or to elect to take title subject to her right to have her dower ad-measured, and to be allowed, out of the purchase money, a sum equivalent to the gross value of such dower right, which is ascertainable on established legal principles. But hero the widow was also executrix, and, as such, one of the parties to the contract of sale. She is also made a defendant in this action in her individual capacity. We think that, by joining in the contract of sale, without any reservation therein of her dower right, she consented, so far as her individual rights were concerned, to make a good title to the purchaser, and to look to the purchase money as a substitute for the land for her dower right therein.

The point made on the part of the' defendant, that she could not dispose of her dower before.it was admeasured, is decided adversely to her in the case of Payne v. Becker (81 N. Y., 153). She should therefore be decreed to release her dower to the purchaser on the payment to her of the gross value out of the purchase money.

The defense interposed on behalf of the widow, to the effect that she joined in and executed the contract of sale without knowing or understanding its contents or effect, or comprehending the transaction, is negatived by the findings of the trial court. It appears that the contract was in all respects fair, for a full price, and one which it was her duty as executrix tonnake, and that her co-executors were desirous of carrying it into effect, and offered to her to make liberal provision for her individual interest in the land by investing about two-thirds of the proceeds for her benefit during her life, but that she has refused to carry out the sale, and has retained the substantial occupancy of the property ever since the time fixed for the completion of the sale, viz., March 1, 1882.

The only remaining questions are those which relate to the rents and profits from the time when the purchaser became entitled, to his deed. There can be but little controversy about the ordinary rules for the determination of these questions. Where the purchaser is ready and willing to perform, and the delay is on the part of the vendor, the purchaser is entitled to the rents and profits from the time when, according to the, terms of the contract, possession should have been delivered, or, if the vendor has remained in possession, he is chargeable with the - value of the use and occupation from the same period, and the purchaser is chargeable with interest on the purchase money if it has remained in his hand unappropriated. But where it has been appropriated, and notice thereof given to the vendor, and the purchaser has received no interest thereon, he is not liable to pay interest to the vendor. Fry Spec. Perf., 481, 483, 889; Dias v. Glover, Hoff. Ch., 71, 78; Story Eq., § 789; Worrall v. Munn, 38 N. Y., 142.

In this case it appears from the findings that $500 of the purchase - money was paid to the vendors at the time of the making of the contract, and that on the day appointed for its performance he tendered the residue, $Í0,500, and, on its being refused by the defendants, he deposited the same in the First National Bank of Lowville, on notice to the defendants, subject to their order, and to be delivered to them on the execution and delivery of a deed of the farm, which had. been previously tendered to them for execution, and which was an executor’s deed in the ordinary form. The appropriation of the purchase money thus appears to have been complete, and sufficient to discharge the ■plaintiff from liability to pay interest thereon. ■

The judgment appealed from attempts to adjust the equities by requiring the defendants to execute and deliver to the plaintiff an ordinary executor’s deed of the premises, and renders judgment against them, as executors, for the rental value of the farm since March 1, 1882, fixed at $350 over and above the widow’s use of one-third thereof, and rendering judgment against the defendant Emily P. Beach individually as well as in her representative capacity, for the amount remaining unpaid upon the mortgage, together with the value of her dower interest therein, to be ascertained according to the rules and practice of the court. We think that in these respects it requires modification. The amount unpaid upon the mortgage, instead of being charged personally upon the widow, should be paid out of the purchase money. Instead of a personal judgment against the widow for the value of her dower interest, she should be directed to release her dower. The value of her dower right should be' ascertained _ as of the 1st of March, 1882. She would have been • entitled to that if she had performed the contract. The plaintiff being entitled to the whole of the rental value of the premises since that time, so much thereof as. has. been deducted, by reason of her dower right from the rental value allowed to him as against the executors, should- be paid to him out of the gross sum ascertained as the value of her dower right.

The judgments of the general and special terms should be modified accordingly, and with these modifications the interlocutory judgment appealed from should be affirmed, without costs of this appeal to either party.

All concur.

Judgment affirmed._  