[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 23 Were the coverture of Mrs. Smith the only defence, I think a specific performance of the contract should be adjudged. (Ballin v. Dillaye, 37 N.Y., 35.)
But I do not propose to discuss that question, as the judgment must be affirmed on account of a want of proper performance or apparent ability to perform the contract on the part of the plaintiff.
The persons who held mortgages, upon the property contracted to be sold, neither released nor came under any legal obligation to do so. The offer of a deed, while the premises remained incumbered so largely, was not an offer to perform according to the condition of the contract.
The mortgagees ought to have been present, with releases duly executed and prepared to be delivered; or such documents as would render the premises free of incumbrance ought to have been intrusted to some person, to be present when the offer was made, having authority to deliver or record them upon receiving the mortgage which Mrs. Smith had agreed to execute. There was no certainty that she would have been able to obtain a title to the premises, freed from the outstanding mortgages, if she had accepted the deed from the plaintiff and delivered her bond and mortgage according to the contract. The hazard of the mortgagees continuing to be of the same mind, and willing to release the tavern stand upon the security of her mortgage, would have been changed from the vendor to the purchaser without any reasonable indemnity. Nor was it clear that the plaintiff would have used the mortgage, if obtained, for the purpose *Page 25 of extinguishing the prior outstanding incumbrance. Mrs. Smith had not agreed, and cannot be required, to accept such a risk. Nor did her notice of an intention not to complete the purchase relieve the plaintiff from the obligation to have those mortgages discharged at the time he made his offer of a deed, or at least at the time of the trial, if he wished to call upon the court to adjudge a specific performance against the purchaser.
Had the plaintiff obtained the releases, and been able to convey a clear title, even at the day of the trial, it is possible that the authorities might warrant a judgment in his favor, without an actual tender or offer of a deed after the receiving of the notice that the defendant would not complete her contract. (Crary v. Smith, 2 Comst., 60; Judge GRAY'S opin.)
The plaintiff, before asking a judgment for specific performance, must make a case showing a moral certainty that the purchaser would receive such a title as she had contracted to take.
The court cannot be called upon to try any experiment to ascertain the possibility or chance of making a clear title, depending on the caprice of the prior mortgagees, who are not parties to the action, and have not placed it out of their own power to recall their verbal consent to receive a substituted security.
The cases relied on by the learned counsel for the appellant do not bear him out on this point. In Guynet v. Mantel (4 Duer, 86), the incumbrance was only $1,000, and the further cash payment to be made by the purchaser was very largely in excess of the mortgage. The purchasers, having connived at a transfer of the mortgage (which was not then due) to friendly hands, whereby the vendor was unable to obtain its discharge and convey the premises free of incumbrance, as he had agreed to do, brought an action demanding damages as for the vendor's refusal to convey. In a cross-action brought by the vendor, the court compelled the purchasers to receive *Page 26 the title, making provision out of the cash payment to be made by them against the comparatively small mortgage.
In Marsh v. Wyckoff (10 Bosworth, 202), the vendee sought to recover money paid to the vendor on account of land which he had agreed to purchase, claiming that the vendor was unable to perform, on account of an undischarged lien for taxes, as well as upon the ground that the agreement was within the statute of frauds, and void. The purchaser owed a much larger cash payment on account of the land than was required to relieve it from the lien. The right of the vendee to recover as for money had and received to his use was denied.
Clearly, these are not analogous cases. They do not sustain the claim of the vendor to compel a purchaser to perform where the cash payment is not adequate to discharge the incumbrances.
The objection of the defendant to a specific performance appears to be well taken, and the judgment should be affirmed with costs.