Opinion
No. 3691.
Decided March 2, 1948.
There is no requirement that a memorandum for the sale of land to be valid must be signed by the purchaser. Mutuality of remedy is not essential to specific performance of a written agreement to convey land where the purchaser's only engagement was to pay a sum of money upon the delivery to him of a deed. Where the promise of the seller as contained in a memorandum for the sale of land was given in exchange for the purchaser's promise to buy and the agreed purchase price tendered within the stipulated time, the seller cannot refuse to convey for lack of consideration since the mutual promises furnished adequate consideration for each other. Where subsequent to executing a valid memorandum for the sale of land and a proper tender made by the purchaser, the seller conveys the land to a third party who had knowledge of the former agreement, such third party may be ordered in a bill for specific performance to convey the land to the original purchaser by warranty deed upon payment of the purchase price as stated in the agreement. An agreement by a husband to convey land "free of all incumbrances" is an undertaking to convey free of his wife's inchoate right of dower.
BILL IN EQUITY for specific performance to convey real estate. The dispute arises out of a memorandum signed April 6, 1946, by the defendant Oliver W. Priest which reads as follows:
"Portsmouth, N.H.
"April 6, 1946
"I hereby agree to sell to John E. Swanson of 35 Market Square, Newburyport, Mass., the land and buildings on Ladd Street in Portsmouth, N.H., described in my mortgage to the Portsmouth Trust Guarantee Company, dated June 2, 1919, recorded in Rockingham Registry of Deeds, book 730, page 344, for the sum of Seven Thousand ($7000.00) Dollars, payable on delivery of warranty deed, within ten days, free of all incumbrances except 1946 taxes.
"Oliver W. Priest
"Witness:
"Alonzo W. Parks
"Frederick Rowe"
On the same day that this was signed the plaintiff orally agreed to buy the property according to the terms above set forth.
Mary W. Priest, Oliver's wife, who is joined as a defendant refused to sign this agreement, but the next day signed with her husband an agreement to sell to the defendant company, McIntire Enterprises, Inc., which had full knowledge of the situation for $10,000. The plaintiff twice made proper tender to Priest of $7,000 within the time limited by the agreement, but the latter refused to accept the tender or to execute the deed. The plaintiff brought a bill in equity against both Priests for specific performance and incidental relief, at the same time making a real estate attachment. On the same day the Priests conveyed the property to the defendant company receiving for it the agreed price of $10,000. The plaintiff then filed an amendment to his original bill joining the company as a defendant and asking again for specific performance and incidental relief.
The question as to whether the plaintiff is entitled to relief against any or all of the defendants was transferred without ruling by Wheeler, J.
Edgar A. Blanchard (by brief and orally), for the plaintiff.
George P. Cofran and Thomas E. Flynn, Jr., (Mr. Flynn orally), for the defendant, McIntire Enterprises, Inc.
Harold M. Smith, Ralph G. McCarthy and Henry M. Fuller (Mr. Fuller orally), for the defendants.
The memorandum signed by the defendant, Oliver W. Priest, fulfills all the requirements of a valid memorandum for the sale of land. R.L., c. 383, s. 1; Dunlap v. Foss, 82 N.H. 449, and cases cited. The argument of the defendants that the writing fails because it lacks the signature of the plaintiff and also because mutuality of remedy does not exist, requires scant consideration. Neither our statute cited above nor any case in this state which the defendants have brought to the attention of the court holds the plaintiff's signature essential. See also, 37 C.J.S. Statute of Frauds, s. 206. Nor is mutuality of remedy a requisite under the circumstances here where the plaintiff's engagement was only to pay a sum of money. Hickey v. Dole, 66 N.H. 336; Ekstein v. Downing, 64 N.H. 248. The case of Knox v. Allard, 90 N.H. 157, is clearly distinguishable in that there the plaintiff's promise was not payment of money but acts of personal service specific performance of which is not ordinarily decreed. Knox v. Allard, supra, and cases cited.
Nor do the defendants' contentions that the memorandum was merely an offer which was withdrawn before acceptance impress us. The unchallenged finding of the master is that the promise of the defendant to sell was given in exchange for the plaintiff's promise to buy, and that twice within the time stipulated the plaintiff tendered the agreed price which the defendant Priest refused. It is fundamental that mutual promises furnish adequate consideration for each other. Makowiec v. Insurance Company, 83 N.H. 547; Restatement, Contracts, N.H. Anno., s. 75; 17 C.J.S., Contracts, as. 97, 98. Furthermore the plaintiff both by his bill in equity and orally has acknowledged his promise. 37 C.J.S., Statute of Frauds, s. 206, note 61, 49 Am. Jr., Spec. Perf., ss. 36, 37; 65 A.L.R. 49, note. Neither our statute nor any authorities in this state cited by the defendants require the consideration for the defendants' promise as distinct from the consideration for the conveyance or performance to be stated in the memorandum. In the present case the consideration for the conveyance in the sum of $7,000 was stated and that is sufficient. R.L., c. 383, s. 1; Huot v. Janelle, ante, 10; Brown v. Fowler, 70 N.H. 634; McDonald v. Fernald, 68 N.H. 171; Britton v. Angier, 48 N.H. 420, 425. Hickey v. Dole, supra. The cases cited by the defendants upon this question are distinguishable from the situation before us in that the agreements in them either neglected to state any consideration for the conveyance or promise, or failed to express it with sufficient definiteness. If decisions in other states indicate a contrary rule they are not controlling.
The defendant McIntire Enterprises, Inc. purchased with actual as well as constructive knowledge of the agreement, which the trier of facts found reasonable and equitable, and consequently at its peril. Under similar circumstances it has been held that such a purchaser may be ordered to convey his interest directly to the injured plaintiff. Hickey v. Dole, supra. See also, Mansfield v. Hodgdon, 147 Mass. 304. No reason appears why this cannot be done in this case and the defendant company, which now holds full title to the property be ordered to convey to the plaintiff forthwith free and clear of any incumbrances, upon payment to it of $7,000, plus 1946 taxes, if paid by the company. The amount of said payment shall be modified by such an accounting of the use and management of the property as a constructive trustee should make less whatever benefit has accrued to the plaintiff by reason of the postponement of his payment of the purchase price.
Although the plaintiff has no equitable rights against the defendant Mary Priest who was not a party to the transactions with the plaintiff, conveyance by the defendant company will result in no unjust enrichment of the plaintiff, since the defendant Oliver Priest undertook to convey "free of all incumbrances except 1946 taxes." This was an undertaking to convey free of his wife's inchoate right of dower. Fitts v. Hoitt, 17 N.H. 530; Russ v. Perry, 49 N.H. 547.
It is unnecessary to decide here whether the defendants have any rights against each other as a result of this transaction, and no opinion is intended to be expressed concerning this.
Case discharged.
All concurred.