Beyer v. Marks

By the Court:

Although I am not perfectly satisfied that this is a case where specific performance should not be decreed, yet I am clearly of the opinion that in case of such a decree, compensation should have been awarded.

In Dyer v. Hargrave (10 Vesey, 505), there was a bill filed for a specific performance of a purchase of land sold at auction. The particulars preceding the sale described the house as in good ■ repair, and that the farm was all within a ring fence. The defendant objected on the ground that this description was not true, and it was admitted that the facts in the case varied from this description, but that a minute examination would have disclosed the facts and discovered the defect.

*723The master of the rolls decreed a performance, and held that every variance from a description would not enable a man to resist the performance of a contract.

That if a man gets substantially that for which he bargains, he must take a compensation fqr a slight deficiency in the value.

In King v. Badeau (6 Johnson’s Ch. Reports), Chancellor Kent, referring to Dyer v. Hargrave, says, “ This case establishes what I apprehend to be the true doctrine on the subject,” and in the decree or order then made by the chancellor, he adopts this doctrine. In the case of King v. Badeau, two lots were sold together at auction, Nos. 42 and 43 Broome street. There were two buildings on No. 42, one in front and the other in the rear of the lot, both of which projected upon No. 43 about twenty inches. The lots were sold free from all incumbrances, except a lease of lot 42, which lease provided for the disposition of the houses at its termination.' The terms of sale stated that the buildings were situate on lot No. 42, but the fact was that they projected about twenty inches over and upon lot 43. The purchaser claimed that this variation of the condition or quality of the lots ought to vacate the sale. The chancellor held that this variation was not sufficient to justify the abandonment of his contract, but as it might diminish its value below what its value-would have been if such projection had not existed, he ordered a reference to ascertain the amount of such diminution in value (if any).

The rule or principle was discussed and fully recognized in the opinion of this court in Guynot v. Mantel (4 Duer, 94), wherein Justice Hoffman laid down as a general rule “ that a purchaser may insist upon a good, valid, and unincumbered title to the property for which he contracts,” and also “ that a purchaser is entitled to obtain substantially the property for which he contracted.”

From these cases, and others that I have examined, I conclude the following rules to be well established in this State:

Fwst.—A purchaser may insist- upon a good, valid, and unincumbered title.

*724Second.—lie is entitled to receive substantially, from his vendor, all the property for which he contracted.

Third.—If he obtains such a title, and by the conveyance offered obtains substantially the property for which he contracted, a court of equity will enforce performance on his part —otherwise not.

These general rules are not, in my opinion, modified or affected by those relating to compensation, which the court will enforce in all proper cases, in favor of the purchaser against the vendor, when specific performance has been or shall be decreed, as, for instance, in the case of a slight or immaterial deficiency in the estate, a variance of description, or an incumbrance affecting the title, as in the cases cited. The doctrine of compensation, as a rule in equity, follows these and like cases, in order to pay the purchaser for these slight defects, that in equity he may be entitled to, if in equity he should be compelled to fulfil the contract of purchase, and in such cases compensation follows as a matter of right, and, as I hold, must be provided for in the decree in all proper cases.

There are certain conditions or circumstances attendant upon every case of compensation:

First.—The deficiency, defect, or whatever is complained of, must be one of that character that can be made the subject of compensation, or of consideration as damages.

Second.—In such a case, compensation can be and should be decreed by the court, provided, hoioever (and this proviso seems to be expressly laid down by Justice Hoffman in Gruynot y. Mantel), that it is also a case where the court concludes that the purchaser would not have declined the contract had he known of the defect or matter complained of at the time of the purchase.

This doctrine of compensation was carried to an unwarrantable extent in the early English cases, and a court of equity should keep it entirely subservient to the general rules. As the doctrine is now held in this State, and as considered and reviewed by Sent and Hoffman in the cases cited, it is consistent with the rules of equity, and now stands upon a just and safe basis.

*725In all cases where compensation should be considered and given, the court should provide for the same, and receive evidence relating thereto, so that equity can be fully meted out in the decree. It is very clear, in my judgment, that if in this case the contract should be enforced, compensation should be awarded. If the referee had taken testimony relating to the same, it might more clearly and fully appear that it was not a case where compensation could have been made, and that performance should not have been decreed. As the case now stands, there is much force in the proposition that the defendant would receive substantially the property for which he bargained, and had he known the facts he would still have purchased, as there is also in the counter-proposition, “ that he has not received what he purchased, and had he known of the projection of this building into the street he would not have purchased,” etc., but I am confident that the referee erred in not providing for compensation after holding that the contract should be enforced, notwithstanding this defect or deficiency.

The judgment should be reversed, and a new trial ordered, with costs to abide the event, and the order of reference vacated.

(concurring). The contract between the parties in this case requires the plaintiff to convey to the defendant “ the property known as Nos. 265 and 267 Sixth avenue, and 100 and 102 West Seventeenth street, in this city, with the buildings thereon.”

It is conceded that the plaintiff owns and may convey all the land on which the buildings stand, with the exception of a small strip of ground in and constituting a part of Seventeenth street, upon which the iron columns supporting the corner building encroach about three inches, and over which the wall" itself, above the first story, projects the same distance.

It is obvious that the plaintiff designed, in good faith, to sell, and the purchaser to buy, not only the land upon which the buildings were, but the buildings themselves, with all the land on which they stood. It being clear that the vendor is unable *726to make a valid conveyance of all such land, the question is whether the purchaser is bound to take the plaintiff’s deed for such portion thereof as he can legally convey, in full satisfaction of the contract on the part of the latter.

If the overlapping of the building in question was an encroachment upon the property of an individual owner, as would have been the case had it extended three inches beyond the plaintiff’s southern line, the defendant, there can be no doubt, would not have been bound in law to accept*a deed conveying to him all the land owned by the vendor as a performance of the agreement.

The mayor, aldermen, and commonalty of the city of Hew York are not only the owners, in fee, of the streets laid out by the commissioners under the act of 1807 (Davies’ Laws, 460), and opened in accordance with the provisions of the statute of 1813 (Valentine’s Laws, 1190), but they hold the land covered thereby in and upon the trust “ that the same be appropriated and kept open for public streets forever ” (ib., 1198). It follows that the corporation not only may maintain an action of ejectment for the recovery of so much of the street as is covered by the building in question, as the owner of the fee, precisely the same as an individual might do, but that it is also charged, by a positive enactment of the legislature, with the trust, obligation, and imperative duty to keep the land free and open as and for a street forever; a trust or duty, it may be remarked, of which any cestui yue trust, interested in the question, or the attorney-general, may enforce the execution. Considering this, it appears to me that the deed offered by the plaintiff is, at least, as objectionable as it would be if the building rested upon and projected over the adjoining land of an individual to the same extent.

The referee has found, and, no doubt, correctly, that such encroachments upon the streets of the city are not uncommon; and he might have added that they have, in many instances, been tolerated by the failure to act, or silent acquiescence of the corporation and its officers. We have no right to assume, however, *727that the city authorities will not, at some future time, deem it necessary or proper to compel the removal of all obstructions from the streets, so as to have them open as such for their entire width, nor that the corporation will always refrain from enforcing its rights as the owner of the fee. We have simply to determine upon the legal and equitable rights of the parties to this controversy, and cannot, properly, thus speculate upon probabilities.

It is also true that the limited area of the corporation’s land occupied by the building is of but little comparative value. But, even if the value was so small as to bring it within the maxim “demi/nimis non cv/rat lex” which is, at least, doubtful, it is to be considered that the injury to the owner of the building, in case the corporation should enforce its rights, would not be measured alone by the value of the land, but as well, probably, by the trouble and expense of removing the wall or reconstructing it.

In order to entitle the plaintiff to recover in this action, he was bound to prove upon the trial, either that he had fully performed the provisions of the contract on his part according to the letter thereof, including the conveyance of that portion of Seventeenth street occupied by the building, or, to show by his evidence that the non-conveyance of the latter was not essential or material to the full performance by him of such contract; and as he has not done this, the principle upon which the numerous decisions have been made whereby decrees for specific performance have been passed, notwithstanding the failure or inability of the complainants to perform their agreements in certain unimportant and non-essential particulars, does not apply to this case.

I am, therefore, of opinion that the learned referee erred in directing a judgment for the plaintiff, and that such judgment should be reversed and a new trial awarded, with costs to abide the event.

In view of what I have said above touching the duty of the corporation under the act of 1813,1 deem it unnecessary to express any further opinion here touching the validity and effect of *728the license given by the corporation to the plaintiff to build an area, in so far as that license may have been intended to empower him to occupy permanently any portion of the surface of the street.