Clark v. Hall , 7 Paige Ch. 382 ( 1839 )

The Chancellor.

I have no doubt as to the power of the vice chancellor in this case to give the necessary directions to compel the complainant, on his part, to perform the agreement for the specific performance of which he had obtained a decree. A decree cannot be varied in substance on petition, without a rehearing. But it may be corrected or amended on motion or petition, as to mere clerical errors; or by the insertion of any provision or direction which would have been inserted as a matter of course, if asked for at the hearing, as a necessary or proper clause to carry into effect the decision of the court. And where the further direction asked for is merely consequential upon the decree itself, the proper course is to supply the omission by a distinct order without altering the decree.

I am inclined to think, however, that the vice chancellor has not given the proper relief which ought to have been given in this case ; but probably that was owing to the neglect of the complainant’s counsel to object to the form of the relief which the defendant had stated specifically in his petition. If any such objection was made, the proper relief should have been given, under general prayer that the petitioner might have such relief as he was entitled to upon the facts of the case. This decree is in substance a decree for the specific performance of the agreement by both parties. But as it probably was not contemplated, at the time of making the decree, that the complainant might thereafter refuse to pay the purchase money and accept the deed to which he was entitled under the decree, the directions consequent on such a refusal were not then added to the other directions contained in the decree.

The vendor has a lien upon the premises sold for the unpaid purchase money. And where there is a decree for a specific performance, if the vendee will not accept the conveyance and pay the purchase money the premises may be sold for the purpose of raising such purchase money; and if the amount produced is not sufficient to pay what is due, with the costs of sale, the vendee may be ordered to pay the balance. And if there is a surplus it will be paid to him. Yet it is not a matter of course to direct a sale, unless the vendor asks for it; as the court may make a decree, as in the case of a strict foreclosure, where the case is a proper one for such a decree, that if the vendee does not pay the purchase money, within such time as may be limited for that purpose by the court, he shall be barred and foreclosed of his right to claim a specific performance after-wards. The objection to the form of this order is, that it directs the bill to be dismissed, after a decree had been made thereon to pay the complainant’s costs ; and still retains the suit in court for the purpose of giving to the defendant an account of the rents and profits of the premises while the complainant was in the possession thereof. The bill should not have been dismissed. But the order should either have directed a sale of the premises and that the defendant unite in the conveyance to the purchaser, for the purpose of raising the purchase money and the costs of the sale, with a further direction that the complainant should pay the deficiency, if any, arising out of such sale ; or, instead of dismissing the bill, the complainant’s right to a specific performance should have been declared to be barred, if he did not accept the conveyance and pay the purchase money within the time prescribed by the order of the court; and that in that event he should also deliver up the possession of the premises to the defendant and account to him for the rents and profits thereof. The appellant, therefore, may have the order modified in either of these ways, if he thinks proper to do so, at any time within twenty days after the pronouncing of this decision ; otherwise the order is to be affirmed as it now is. And in either case he must pay the costs of the respondent on this appeal; as it does not appear that he made any objection to the form of the order, before the vice chancellor.