Purcell v. Burns , 39 Conn. 429 ( 1872 )

EostbR, J.

Three questions on this record are reserved by the court below for the advice of this court:

1. Whether the parol evidence, set forth in the finding, was admissible in connection with the release deed given by the plaintiff to the defendant dated Nov. 15,1866.

2. If such evidence was admissible, can any decree be passed in favor of the plaintiff ?

3. And if so, what shall the decree be ?

That the parol evidence was admissible for the purposes for which it was offered, we entertain no doubt. The princi-. pies involved in the question have been so often discussed and decided in this court, that further examination seems unnecessary. Collins v. Tillou, 26 Conn., 368; Clark v. Tappin, 32 Conn., 56; Baldwin v. Carter, 17 Conn., 201; Quinn v. Roath, 37 Conn., 16; Reading v. Weston, 8 Conn., 117.

We are also clear that judgment should be rendered for the plaintiff, and a decree passed in his favor.

As to the character of this decree, some embarassment arises from the change which has occurred in the amount of-the lien, by mortgage, upon the premises, since the original contract between the parties was made. The New Haven ■ Savings Bank, which holds this mortgage, is not a party to this bill, and is not before tlie court. From tlie facts found tlie case of the plaintiff calls too loudly for equitable relief to be resisted on technical grounds, unless they shall be found quite insurmountable. They are not, we think, of that character. A decree can be framed which will do substantial justice to the plaintiff, without impairing the rights of others, and without violating any established rules and principles of equity.

By the original contract the plaintiff was to pay the defendant $1,000 in installments from time to time, the mortgage on the property amounting to $2,000, "together with all the taxes and insurance, and all charges for paving and fencing. Equity of course demands a full performance of all these conditions by the plaintiff on his part, before he is entitled to a conveyance of the land.

The $1,000 has been paid by the plaintiff, and the interest on the $2,000 up to the 15th of December, 1866. The next payment of interest, tendered by the plaintiff soon after that date, was refused by the defendant, and has not since been paid by the plaintiff. This interest, together with the taxes and insurance, since paid by the defendant, should be reimbursed to him by the plaintiff, and the defendant should then give him a deed of the premises.

But the mortgage now resting upon the place, which mortgage also includes adjacent land, amounts to $3,200, and the payment of the $2,000, with interest, will not clear off the incumbrance.

Let the plaintiff pay to the defendant such taxes and insurance on the premises, and such interest on tlie mortgage debt of $2,000, as the defendant may have paid'; then let the plaintiff pay to the New Haven Savings Bank, if the bank will receive the same, and will, in consideration thereof, release the land from the incumbrance, the sum of $2,000, (which we are given to understand the bank is willing to do;) then let the defendant give to the plaintiff a deed of the land, with the usual covenants of warranty and against incum-brances. And if the bank will not receive the same, and so release the land, let the plaintiff pay the sum of $2,000 to the defendant, and let the defendant, within such, reasonable time as the court shall limit and appoint, procure the release of the land from the lien of the mortgage, and give to the plaintiff a like warranty deed of the land with the usual covenants. • (

The Superior Court is advised to pass a decree in accordance with these views.

In this opinion the other judges concurred.