Argued January 26, 1880
Decided February 3, 1880
H.D. Tucker and Wm. E. Edmonds, for appellant. Oscar Craig, for respondent.
No sufficient reason is given why the plaintiff is not entitled to maintain an equitable action for a specific performance of the contract entered into between herself and the defendant. She had a right to such a conveyance as the contract called for and was under no obligation to pursue a remedy by an action at law upon the covenant of the defendant in the contract to pay all taxes. Even if an action at law might have been maintained to recover the amount of the taxes mentioned in the contract, it cannot affect a suit in equity for the delivery of a proper deed: ( Losee v. Morey, 57 Barb., 561.)
The alteration made by the defendant in the deed tendered by him to the plaintiff after its execution, by striking out the covenant making the premises conveyed subject to taxes, rendered it ineffective to vest a perfect title in the plaintiff. The deed had been executed by the defendant and his wife, and the change made was without the authority of the wife and therefore did not remedy the defect alleged, even if the right of the plaintiff under the contract, as insisted upon by the defendant, was undisturbed. The deed was vitiated by reason of the alteration, and the plaintiff was not bound to accept the same in the form in which it then was.
The claim of the defendant's counsel, that the agreement to pay taxes was without consideration, is not well taken. This position rests upon the assumption that in the account of the defendant furnished upon the adjustment of the defendant's claim, no charge was made for any such taxes, although there is a charge for taxes paid upon the city property, which the defendant had purchased at sheriff's sale and held for the plaintiff's benefit; and that the difference between the amount of the defendant's account and the amount at which it was finally arranged — some thirty odd dollars — was the cost of the ejectment suit brought by the defendant against the plaintiff. The plaintiff, on the other hand, claims that the consideration was agreed upon as a compromise of conflicting claims and in settlement of the ejectment suit, and that the payment of the taxes with the trifling sum in addition was covered by the covenant of warranty, and that the consideration expressed in the land contract was raised from $114.73 by adding $33.72, making $148.45, with the intention to cover the unpaid taxes. There was no direct evidence in regard to this, but there was testimony upon the trial showing that a compromise was agreed upon between the parties, and the judge found that an amount was settled upon by compromise as the sum to be paid to the defendant for the balance due him. This finding is conclusive upon the question considered. It may also be remarked that the written contract merged all prior negotiations and, under the circumstances, must be considered as a settlement of all previous controversy between the parties.
The counsel for the defendant claims that the judge erred in finding as a fact that the deed tendered by plaintiff to defendant was according to the terms of the contract, and that the judgment based and entered on such finding is erroneous. In connection with the finding referred to, the judge also found that the deed was tendered to the defendant for execution, but the defendant refused to execute the same, and wholly refused to execute any such deed as was agreed to be executed in and by the terms of the contract. It cannot be doubted that the defendant refused to execute any deed that the contract called for; and as the plaintiff was not required to tender a deed, the finding objected to is not material and, therefore, is no ground for reversing the judgment.
We are of opinion, however, that the part of the judgment which provides for the payment of taxes to May 4, 1876, should be modified so as to read from May 4, 1875, and with this modification, the same should be affirmed, without costs to either party in this court.