
    Augustus F. Ferris, App’lt, v. John F. Plummer, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1886.)
    
    1. Contract—Specific performance—Enforcement of, discretionary.
    The enforcement of specific performance of a contract always rests in the sound discretion of the court.
    3. Same—Of contract for sale of real property—When will not be decreed.
    When any reasonable doubt exists as to the validity of the title to real estate, the court will not compel a purchaser to take the title, but will leave the vendor to his action for damages.
    B. Same—What is reasonable doubt.
    A decision by a court of co-ordinate jurisdiction adverse to the principle upon which the title rests, will raise such a doubt, although the court may consider the decision wrong.
    4. Same—Costs discretionary.
    Costs in an action to compel specific performance of a contract are within the discretion of the court.
    Appeal, from a judgment in favor of the defendant, entered in Kings county upon an order dismissing the complaint with costs.
    The action was brought for specific performance of a contract for an exchange of real property.
    The property agreed to be conveyed by the plaintiff consists of eight large tenement houses, with the lots, situate on Sullivan street, in the city of Brooklyn. The contract for the exchange was in writing, and is dated January 5th, 1886. By its terms the parties mutually agreed “to execute, acknowledge and deliver, each to the other, or to their assigns, * * * a proper deed or deeds for the conveying and assuring, each to the other, the fee simple of the property of each, above described, free from all incumbrances, of any name or nature, except as aforementioned.” The defendant refused to carry out the contract for two reasons; one being based on the ground that the plaintiff did not offer a good title, free from all incumbrances, etc.
    The plaintiff’s title to the property is derived through a foreclosure proceeding. The findings of fact, to whicfi no exceptions were taken, disclosed the following: In December, 1884, William I. Preston began proceedings in the supreme court to foreclose a mortgage held by him on the property in question. On Depember seventeenth he filed a lis pendens in the usual form. On February 11, 1885, he obtained an order from the court directing that service of the summons on William H. Algie, the mortgagor, the owner of the property and the only defendant, be made in the substituted method prescribed by section 435 of the Code of Civil Procedure. On February twelve service on Algie was made as directed in the order. On February sixteenth an affidavit was filed showing such service, which was the only service of the summons made on Algie. On December 19, 1884, however, two days after the lis pendens was so filed, Algie executed a mortgage on the property for §4,000, which was recorded on December 24, 1884. On January 8, 1885, a mechanic’s lien on the property for $1,262.80 was docketed against Algie, as owner, and on Februaray 14, 1885, in an action to foreclose said lien, the usual notice of pendency of action was duly filed with the complaint. On August twenty-eight, judgment of foreclosure and sale was duly entered in the last named action, by the terms of which the sheriff was directed to expose the property in question for sale, and out of the proceeds—first, to satisfy plaintiff’s claim therein of $1,347.20 damages and costs, ana apply any residue toward the payment of another mechanic’s lien claim for $300, docketed January 16, 1885. On March 12, 1885, a judgment for $138.93 was duly docketed against said Algie in Kings county. Said mortgage, judgments and hens remain wholly unsatisfied. No amendments were ever had in the Preston foreclosure action, through which the title is derived, and no Us pen-dens was filed, except as above stated. On April 8, 1885, judgment of foreclosure and sale was entered in the Preston foreclosure action. On May 2, the sheriff’s deed was executed to the purchaser Augustus F. Ferris, plaintiff in this action. The defendant claimed that the plaintiff’s title was subject to the mortgage of $4,000, to the judgments of August 28, which in the aggregate amounted to $1,647.20, and the judgment of March 12 for $138.93; that the filing of the lis pendens in the Preston action, which was not followed within sixty days by either personal service or the commencement of service by publication, or by service without the state, as required by section 1670 of the Code, did not operate as constructive notice to such incumbrancers, or bind them by any proceedings taken in the action.
    
      B. F. Tracy, for app’lt; Booraem & Harris, for resp’t.
   Pratt, J.

The enforcement of specific performance always rests in the sound discretion of the court.

And when it is made to appear that a reasonable doubt .exists as to the validity of a title, the court will not compel a purchaser to take a title, but will leave the vendor to his action for damages.

In the case at bar,' we think the decision in Rogart v. Swezey (26 Hun, 463), raises enough doubt as to the validity of the title, so that specific performance should not be required. "VYe cannot distinguish between the principle of that case and the case now presented. It has been said that a decision by a court of co-ordinate jurisdiction adverse to the principle on which the title rests, will raise sufficient doubt that specific performance will not be decreed though the court thinks the decision wrong. Fry on Specific Performance, 3 Am. Ed. 483.

It would, therefore, not be profitable for us to discuss whether the decision in Rogart v. Swezey correctly states the law. We are constrained to say that an abjection based on a decison of a general term of this court, cannot be considered captious nor unreasonable on the part of a purchaser.

So long as no adverse decision has been made by controlling authority, the holder of the title might find his market injured by the objection now raised.

The decision at special term not to compel performance was therefore right. Costs were, however, in the discretion of the court, and we think should not have been given.

The judgment below will be modified by striking out the costs. No costs of appeal.

Barnard, P. J., and Dykman, J., concur.  