—It seems to me that there are several answers to this action. In the first place I do not think that under the agreement of June 29, 1880, the defendant was under any obligation to bring an action for specific performance. That agreement contains provisions and conditions which are to apply and to become binding upon the parties in case the defendant elects to bring such- an action, but I fail to discover anything in the agreement which renders it obligatory upon her to do so. In the second place this appears to be a case in which the alleged defects in the title were well known to both parties at the time of the contracting for the sale. Negotiations were entered into in respect to such alleged defects, and the agreement hereinbefore alluded to was executed, which left it optional with the defendant whether she would bring an action for specific performance or not. On the 20th of July, 1880, the day on which the contract was to have been closed, the plaintiff did reject the title, on a tender of *158a deed to him, and the defendant subsequently elected not to bring an action for a specific performance by the plaintiff. This put the plaintiff in default and he cannot bring a suit in equity to compel the vendor to give a full and perfect title. In this view it is utterly immaterial whether the objections to the defendant’s title were sound or unsound (Mills agt. Van Voorhis, 23 Barb., 125; Page agt. McDonnell, 55 N. Y., 299). The subsequent negotiations of the parties did not, in my opinion, change the relations between them, which had been fixed by their own acts and by their mutual dealing in respect to the property.
Again, if the objection to the title of the defendant, which is urged by the plaintiff, is sound this is not a case in which a court of equity can decree a specific performance, providing that compensation be made to the purchaser. If the creditors of the defendant’s husband have such a lien on the premises in question, as it is claimed they have, the amount which the plaintiff would be entitled to receive as ah allowance or compensation on that account would be extremely large, if it did not equal, the entire purchase-price. Under such circumstances the authorities do not countenance the granting of a decree for specific performance at the suit of a vendor (See Winne agt. Reynolds, 6 Paige, 412; King agt. Bardeau, 6 Johns. Ch., 38). And by the same reasoning it results that there should' be no decree for a specific performance at the suit of the vendee.
Finally, under all the evidence in the case, I am of the opinion that any rights which the plaintiff may have arising out of the transaction in question can be protected by an action at law, and that in the exercise of a proper discretion specific performance ought not to be decreed.
For these reasons I am of the opinion that the complaint should be dismissed, with costs. The findings may be settled on two days’ notice.
Note.— Affirmed by general term, November, 18S3, on foregoing opinion.