Opinion
Argued April 26, 1880
Decided June 1, 1880
Erastus F. Brown for appellants. William Settle for respondent.
By the contract of sale between the defendant and the plaintiffs, the defendant was, in addition to the warranty deed, to deliver a quit-claim deed or release from the mayor, aldermen and commonalty of the city of New York of the lots conveyed; and if this could not be done at the time of the delivery of the warranty deed, he was to indemnify the plaintiffs, so as to insure a delivery before May 25, 1875. But it was expressly stipulated that a failure to comply with this condition should not affect the responsibility of the defendant under the warranty deed, and that the mortgage of $3,500 which was to be given was to remain as security for the delivery of the quit-claim or release, and not to be collectible, either principal or interest, until the deed was delivered. It thus appears that at the time the contract was executed, and at the time of the delivery of the deed to the plaintiffs, they were fully advised that the defendant was unable to give a perfect title, and that this could only be done by obtaining a quit-claim or release from the city. With full knowledge of this fact, the plaintiffs purchased the premises, executed the mortgage in question, to secure a portion of the consideration money, and entered into a stipulation by which it was agreed that a failure to deliver the release from the city authorities should stay the collection of the mortgage. By this arrangement the contract was not to become forfeited, or the mortgage to be canceled or surrendered, but it was to stand and remain in full force, and the amount secured by the mortgage was not to be collected until the delivery of the deed. The time designated for such delivery was not the essence of the contract, and the effect of a failure was only to postpone the payment of the mortgage until this was done. In view of the agreement made, it, therefore, can only be enforced when a release is obtained and delivered. While there may be objections to such a stipulation, it is to be presumed that the plaintiffs understood the precise effect of the contract, and the difficulty of procuring the release provided for, and, therefore, they have no valid ground for claiming a cancellation of the mortgage. A purchaser of land, who has paid part of the purchase money and given a mortgage for the residue, will not be relieved against the security given, on the mere ground of a defect of title, where there is no allegation of fraud in the sale and he has not been evicted. He will be remitted to his remedy at law upon the covenants in his deed. ( Abbott v. Allen, 2 Johns. Ch. 519; Bumpus v. Platner, 1 id. 213, 218; 2 Kent's Com. 271, 272; Dart on Vend. and Pur. 378, 379.)
The defect here was known and understood, and was provided for in the contract. There was no fraud, and no reason exists why the plaintiffs are entitled to equitable relief in this action. The authorities cited by the appellants' counsel to sustain the position that the plaintiffs have a remedy by an equitable action are not in point. The effect of a decree in favor of the plaintiffs would be to relieve them from payment of the mortgage, while they still retain possession of and title to the land under the warranty deed. They do not ask for a rescission of the contract as an entirety, but only to cancel the mortgage. As one who seeks equitable relief should do equity, this cannot be done, and the plaintiffs have no claim to enforce the contract where it is advantageous and to cancel it where it imposes an obligation to pay money. Such a course would be unjust and cannot be upheld upon any principle of equity. Nor can the plaintiffs' action be sustained upon the ground that the mortgage is a cloud upon plaintiffs' title. The cases in which a person may institute an action to remove a claim which is a cloud upon the title to his real estate are those in which the alleged cloud exists without right. As a general rule, unless the circumstances are such as to sustain an action for slander of title, the law regards the injury too speculative to warrant the interference of a court of equity, and the party affected must wait until the pretended title is asserted. ( Scott v. Onderdonk, 14 N.Y. 9 -14.)
It is also a sufficient answer to the point last considered, that by the terms of the agreement between the parties, the defendant has a right to retain the lien of his mortgage upon the premises conveyed.
The order was right and should be affirmed.
All concur; except RAPALLO, J., dissenting.
Order affirmed.