Selleck v. Tallman , 11 Daly 141 ( 1882 )

Van Brunt, J.

It is difficult to add much in the way of argument to that which has been suggested by the learned referee in his opinion upon the decision of this case.

The learned judge before whom the confirmation of the referee’s report came for hearing, felt the force of the argument used by the referee, and the hardships of the case in respect to the plaintiff, but deemed himself constrained by the decision in the case of Duffy v. Donovan (52 N. Y. 634), to sustain the exceptions to the referee’s report.

An examination of the facts of the case at bar, in connection with the principles enunciated in the case of Worrall v. Munn (38 N. Y. 137), seem to me to clearly distinguish it from the case of Duffy v. Donovan. The principle is clearly recognized in the case of Worrall v. Munn that in .the endeavor to do equity between parties in actions of this nature, regard must be had to the special circumstances wherever there are any peculiarities which render the rigid application of any general rule unsatisfactory. In the case at bar, by the wrongful act of the defendant, the plaintiff in this action lias been kept out of the possession of property from which no rent or profit could possibly be derived as it stood, and which could be made to yield a rent and profit only by improvement. The evidence discloses that the lots were bought for the purpose of improvement ; that preparations were made for the eréction of buildings thereon, in order that a return might be derived therefrom; and under these circumstances to make the plaintiff pay the interest upon the purchase price when he was deprived of the only means of making them yield an income, seems to be the grossest injustice, and to bring the case precisely within the principle laid down in the case of Worrall v. Munn, and the cases there cited. The case of Duffy v. Donovan was decided in the way in which it was expressly upon the ground that the court could not assume, without proof, that the possession of the premises would have been of any value to the plaintiff. In the case at bar the evidence shows (as has already been said) an intention on the part of the purchaser to immediately improve. The evidence also shows that because of this litigation he has not been able to make the improvements contemplated, and that in the meantime building materials have advanced from twenty-five to forty per cent.: in other words, that at the time that he was enabled to obtain possession under the decree in this action, it would cost him from twenty-five to forty per cent, more, to make the lots return an income from the money invested in their purchase, than it would have done had not the defendant in this action kept him wrongfully out of possession. This is a clear showing that the possession of the lots at that time would have been of value to the plaintiff, and takes the case out of the rule as laid down in the case of Duffy v. Donovan.

It has been suggested, that in view of the finding of the referee that there are no damages capable of definite ascertainment proved before him, sustained by the plaintiff by reason of the refusal of the defendant to perform the agreement, we cannot find that the plaintiff has been damaged by the wrongful act of the defendant. The referee does not find that the plaintiff has not sustained damages by reason of the refusal of the defendant to complete, but that such damages are not capable of definite ascertainment—a very different thing from a finding that no damages have been sustained.

The Evidence shows that large damages have been sustained, but owing to the very nature of the case they could not be proved with definiteness, and for that reason it was entirely equitable to charge the defendant with the duty of conveying the property at the date of the delivery of the deed free from all incumbrance, except such as are mentioned in the contract of sale, he being charged with all interest and taxes which have accrued prior to such delivery — these damages being definite andtcertain. Even if such evidence had not been offered as to the increase in the value of building materials, and the case showed that the lots were bought for improvement, and that was the only way in which a rent and profit might be derived therefrom, and that the defendant by his wrongful acts prevented such improvements by which rent and profit might be derived, the same rule would necessarily apply.

It is an elementary rule of equity that a wrongdoer cannot take advantage of his own wrong, and although as a general rule the vendor will be regarded as trustee of the land for the benefit of the purchaser, and liable to account to him for the rent and profits, and the purchaser will be treated as trustee of the purchase money, if not paid, and will be charged with interest thereon, yet such a rule cannot apply to the case where the vendor, by his wrongful act, prevents the derival of any rents and profits from the land sold.

It is urged that the evidence in the case at bar shows that the land largely increased in value during the time that this litigation was in progress, and that that is a profit which the purchaser has received.

I fail, however, to comprehend how an increase in the market value of the trust estate can in any way be considered as part of the rents and profits of said estate. Certainly if real estate is left to a trustee, with a power of changing the investment, and the rents, issues and profits left to a cestui que trust, such cestui que trust cannot claim, in case of a change of investment, any enhanced market value of the land in which the trust fund has been invested, any more than the trustee can claim that any depreciation in the market value of the lands in which the trust fund has been invested can be deducted from the income derived therefrom, in order to keep the trust fund intact.

In the ease at bar the defendant by his wrong having deprived the plaintiff of putting the premises to that use from which rents and profits might be derived, certainly cannot claim that the plaintiff should pay interest upon the purchase price.

In the case of Carrodus v. Sharp (20 Beav. 56) where the subject of the purchase was a mill, and the delay of performance arose from the failure of the vendor to show good title, he was charged with the expense of repairs, and keeping up the mill and machinery until the purchaser could properly be required to take possession, which illustrates the principle which has been contended for above.

It does not seem necessary to discuss the questions involved upon this appeal further. The distinction between the case at bar and the case of Duffy v. Donovan seems to be clear, and the principles upon which the case of Worrall v. Munn was decided are distinctly applicable to the facts exhibited in the case at bar.

The order of the Special Term should be reversed, and the report of the referee confirmed, with costs.

Challes P. Daly, Ch. J., and J. F. Daly, J. concurred.

Order reversed, and report of referee confirmed, with costs.