This was an action in equity brought by the administratrix of H. W. Schroeppel, deceased, to compel the defendant to perform his contract, made by him with the deceased, as it was afterwards modified by his widow and administratrix. The defendant Hopper, in 1857, purchased of Schroeppel two parcels of land, at two different times, and went into possession, which he still retains. On payment of the purchase price Schroeppel agreed to execute good and sufficient deeds of conveyance. Hopper made payments on both of the contracts during Schroeppel’s lifetime. After his death, in 1859, a controversy arose as to the payments, and thereupon Mr. McKoon for Hopper, and Mary Schroeppel for the administratrix, came to a settlement, which they reduced to writing; by which it was agreed that there was due upon the two contracts the sum of $353. It was further agreed that Hopper should pay down the sum of $53, and secure the payment of the residue in six annual installments, on the 1st of September of each year, with annual interest, by his mortgage on the premises, on the delivery to him of a good and sufficient deed, which the administratrix was to cause herself and the heirs of said Henry W. Schroeppel to execute: the papers to be exchanged within three months from the date of the agreement, (December 19th, 1859.) McKoon, on behalf of Hopper, paid down the $53, and the plaintiff procured the adult heirs of H. W. Schroeppel to execute to her a warranty deed of the premises; and on her petition the supreme court appointed a guardian for the infant heir, and she then obtained a deed from the infant heir, conveying his interest in the premises directly to Hopper. The plaintiff then executed her own warranty deed to the defendant and offered it to him together with the deed of the infant heir, and demanded a mortgage, in pursuance of the modified agreement of December 19th, 1859. On his refusal to perform it this action was brought to compel performance.
I had doubts, at first, whether the vendee of lands could come into a court of equity and demand specific performance, *431when he had an adequate remedy by suit at common law to recover the contract price in damages. In Fry on Spec. Perf. of Contracts, (p. 11,) it is said to be well established that the remedy is mutual, and that the vendee may maintain his bill in all cases where the purchaser could sue for specific performance of the agreement. And in the case of Craig v. Smith, in the court of appeals, (2 Comst. 60,) it was held that the court of chancery had jurisdiction in such a case, although the complainant had a remedy at law upon the contract. I am of opinion, therefore, that this court, sitting as a court of equity, has jurisdiction of the action. The defendant’s counsel makes a point that the plaintiff, as administratrix, could not make the modified contract of December 19th, 1859, and he cites cases to show that administrators have no concern with the real estate of the intestate, and cannot enter into a binding contract of sale. The cases he refers to are not in point, however, for here the contract of sale was made by H. W. Schroeppel in his lifetime, and the defendant was in possession. Schroeppel’s heirs were but naked trustees of the title, and the unpaid purchase money belonged to the administratrix. ' (Matter of Everit, 2 Edw. 597.) She did not sell the land, but she undertook to modify the terms of payment. It is not for the defendant to object that such a contract is not binding, after the administratrix had acted under it so far as to have extinguished the title of those who alone have a right to complain of it. To allow the defendant to take the objection after the administratrix has in good faith obtained the title, with a view of complying with its terms, would operate as a fraud upon her. The settlement of the unpaid balance was clearly within her authority, and the-stipulation to take the mortgage was inserted for the sole benefit of the defendant himself, and perhaps should not be imposed upon him if he prefers to perform the original contract, by paying the money instead of giving a mortgage. If it is therefore conceded that this portion of the contract was without authority, the result would be, that the decree, in*432stead of requiring the defendant to execute his mortgage to secure the payment of the §300, at the times therein specified, should have required the defendant to pay it in money on the delivery to him of the deeds conveying the title to the lands in question. According to the case of Boyce v. Prickett, (6 Dana, 231,) the plaintiff might have asked for a decree that the land itself should be sold to satisfy the balance unpaid upon the contract. It was objected upon the argument that the heirs were unnecessary parties; but I think the objection is not well taken, as they have all consented to have the contract executed, and have voluntarily vested the title in the plaintiff to enable her to perform it. The only object in making them parties would be to give them an opportunity of disputing the contract; but having executed it already so far as, and even farther than they could be required to do, (Hill v. Ressigieu17 Barb. 162,) it would be idle to make them parties.
It is further objected that McKoon had no authority to settle and make the modified contract. This was a fair question of fact, and we cannot reverse the conclusion of the referee in respect to it. It is also objected that the plaintiff did not tender the deeds within the three months, and not until the spring of 1861. But time is not generally of much importance, when both parties acquiesce in extending it. If the defendant desired to rescind the contract because the plaintiff was not in time, he should have done so promptly, by surrendering the possession of the premises. It is absurd for the defendant to contend that the contract is at an end, while he is in possession of the lands, holding under it. The printed case shows a clerical mistake in the guardian’s deed. If there is a mistake in fact, it should be corrected before the defendant is required to perform on his part.
Another objection is, that twenty acres of this land were sold for taxes which had been assessed upon the premises before the contract of sale. But the tax title is already in the defendant, and the referee found as a matter of fact, upon contradictory evidence, that the amount paid by the defendant *433to procure the tax title was by agreement to be allowed upon .the contract. We cannot, therefore, disturb the finding of the referee, and it fully disposes of the objection.
[Onondaga General Term, April 7, 1863.On the whole, I see no reason for reversing the general conclusion of the referee. But I think the judgment entered up on his report should be modified, by providing that the defendant, upon presentation to him of the warranty and of the plain- . tiff and the guardian’s deed, properly drawn and authenticated, be required to pay the balance of the purchase price, viz. 0300, with interest thereon at seven per cent, to the time of such payment ; or, in default thereof, that he be required to execute a mortgage upon the premises in question, conditioned for the payment of the sum as specified in the contract in exhibit “I” of the printed case. With this modification, the judgment should be affirmed, but without costs in this court.
Ordered accordingly.
Allen, Mullin, Morgan and Bacon, Justices.]