Hallett v. Parker , 68 N.H. 598 ( 1896 )

The defendant claims (1) that the plaintiffs are not entitled to the specific performance of the agreement to convey the land in question, and (2) that if the plaintiffs are entitled to a conveyance of the land, they must take it subject to a right on his part to maintain upon it his aqueduct. It is urged by the defendant that by the loss of the buildings by fire, which falls on him (Wilson v. Clark, 60 N.H. 352), he is released from the performance of his contract. But if the plaintiffs perform the conditions of the bond, — pay the defendant all they agreed to pay him, — the loss falls on them and not on the defendant. To the facts in this case, Wilson v. Clark has no application. The plaintiffs do not ask to be relieved from the contract because the buildings are destroyed, but they are willing to take the premises as they are, and have fully performed their part of the contract. It is not equitable that the defendant should be relieved from the contract on this account after he has received and retained the full benefits of it.

When the vendor is unable to fully perform his contract on account of "any deficiency in the title, quantity, quality, description, or other matters touching the estate," although his inability may be a good ground for relieving the vendee from the performance of his contract, it furnishes no reason for relieving the vendor where the vendee elects to proceed with the purchase. He has the right to the specific enforcement of the contract so far as it can be performed. 1 Sto. Eq. Jur. (12th ed.), s. 779; 3 Pom. Eq. Jur. (2d. ed.), s. 1405, note.

Both parties have waived all objection on this ground to the carrying out of the contract, the plaintiffs by paying the full amount due, and the defendant by accepting the same. By the acceptance of the price of the premises according to the contract, the defendant is estopped from raising this objection to the specific performance of the contract.

If the plaintiffs cannot compel the specific performance of the defendant's agreement to hold the land received in exchange from the district subject to the same terms as the bond because it was not in writing, yet the land received from the district being purchased by land of the plaintiffs' given in exchange for it, — in other words, being paid for by them, — a resulting trust arises in their favor, and the defendant holds the land in trust for them. Page v. Page, 8 N.H. 187; Tebbets v. Tilton,,31 N.H. 273, 283; Osgood v. Eaton, 62 N.H. 512; Converse v. Noyes,66 N.H. 570.

The plaintiffs are entitled under the agreement to a conveyance from the defendant of the land described in the bond, and under the resulting trust to a conveyance of the land received in exchange from the district.

The defendant claims that his conveyance should be subject to a right to maintain his aqueduct. The fact that the title of the land was in the defendant when the aqueduct was laid does not give him a legal right to maintain it there, as against the plaintiffs. His title was subject to the plaintiffs' right to a conveyance of the premises without restriction or incumbrance. He could not subject the estate to any servitude or incumbrance in favor of himself or others against the plaintiffs.

George and Eliza Farr were tenants in common of the interest in the land arising from the defendant's agreement to convey to them upon the payment of the stipulated sum within a certain time. George verbally assented to the laying of the aqueduct by the defendant over the premises, but Eliza did not assent or, in fact, know of the aqueduct until after it was laid. This amounted to a parol license to lay the aqueduct on the premises so far as George was concerned, but not as regards the interest of Eliza. The license was revokable at any time by the licensor and was in fact revoked by George's death. Blaisdell v. Railroad, 51 N.H. 483. Such a license has not the force of a conveyance of a permanent easement in real estate, as it must necessarily have if the defendant's position is upheld. Houston v. Laffee, 46 N.H. 505; Batchelder v. Hubbard, 58 N.H. 269. The plaintiffs are entitled to a conveyance free from the incumbrance of the aqueduct.

Case discharged.

CARPENTER, C. J., did not sit: the others concurred.