Eastman v. Plumer

Sargent, J.

This is a bill for specific performance of the contract contained in the lease from James H. Plumer and Abby F. Plumer, his wife, to George IV. Young, dated August 25, 1851, in which the court is asked to decree that said Plumer and wife shall execute to this plaintiff as the assignee and representative of said Young, the deed stipulated for in said case, and that said French, the Lake Company, and others, be enjoined from claiming said premises.

It may conduce to a better understanding of this case, to state first in chronological order, the several facts that are either admitted or proved, which are relied on by one side or the other, as material in making out their case.

1. Will of Moses Rowell, dated May 25, 1840, approved and allowed March 1, 1841, in which ho devised his homestead farm in Gil-ford, to his two sons, Jacob and Philip Rowell, for life, with remainder over to the heirs of Jacob and Philip forever.

2. Deed, Jacob Rowell to Lake Company, July 30, 1845. Warrantee deed of all land on the Eowell farm that has been or may be flowed by the Lake Company’s dam, or any other dam of the same height, also releasing all claims for past damages.

3. Jacob Bowell died June 4, 1851.

4. Deeds, between J. H. Plumer and wife, and Ayers and wife, August 20, 1851. Jacob Eowell had two daughters, one of whom, Abby P., married James H. Plumer in 1843, and the other had married one Ayers. These were deeds of partition in which said Plumers obtained title to all that part of said farm bordering upon Long Bay. It appears that said Young and Worster, immediately after Jacob Eowell died, were seeking to obtain some rights in this land which might be flowed by the waters of said bay, and they counselled and advised said Plumers in relation to the partition, so that they might obtain this fio wage, *477 with an arrangement that said Young and Worster were to have some interest in it.

5. Lease, James H. Plumer and wife, to George W. Young, dated August 25, 1851, of one half the right of flowage on said farm; which lease also contained a bond to convey by degd the same premises to Young, his heirs, &c., when he should pay his note of even date for the sum of $320. This note was in a few days exchanged for another of the same date and amount, payable to one Roby, and signed by said Young as principal, and by said Plumer and another as sureties, which note was soon after sold and delivered by said Roby to James Bell.

6. Lease, George W. Young to James Worster, dated October 2, 1851, of one half of said Young’s interest, being one fourth part of the flowage on said farm.

7. Lease, James Worster to Susan M. Worster, dated April 19, 1853, of the same premises, conveyed to him by Young.

8. Attachment, on writ, Lake Co. v. said Young, Dec. 28, 1853, of all Young’s interest in said premises.

9. Deed, George W. Young to Thomas Eastman, dated Feb. 28, 1854, of all said Young’s right (being one fourth part) in the said flow-age. The consideration of this deed was that Eastman loaned to Young the money to pay this note of Young’s to Bell, for $320, after which Eastman kept this deed as security, and also kept the note which Young-had paid to Bell.

10. Suit. Writ entered February Term, 1854. Thomas Eastman sued Plumer on the note he had signed with Young to Roby, and which Young had paid to Bell. At trial, questions of law were reserved which were decided at December Law Term, 1855, and judgment ordered for the defendant. Judgment entered at the February Trial Term, 1856. See Eastman v. Plumer, 32 N. H. 238.

11. Demand for a Deed, by Eastman upon Plumer and wife, Dec. 29, 1855, immediately after the decision of case Eastman v. Plumer, in the Law Term, where it was decided that Eastman could not recover upon the note against Plumer, which Young had paid to Bell.

12. Deeds, James H. Plumer and wife to Lake Company, of the whole land upon the shore of Long Bay, on the Rowell farm, that may be flowed by the company’s dam, dated Aug. 11, and 15, 1859.

13. Lease, Thomas Eastman to George W. Young, dated July 23, 1859, oí all said Eastman’s right in said flowage for 60 days, and this lease was extended to December, 1859, for the purpose of enabling Young to enter upon the company’s dam, to destroy the same, -which he did in conjunction with Worster and others, Sept. 28, 1859.

14. Sale on Execution, April 30, 1860, of Young’s right in the premises in question by the Lake Company, as attached Dec. 28, 1853, which right was purchased by French, as agent, for the Lake Company.

15. Mortgage, George W. Young to Thomas Eastman, April 30, 1860, of Young’s homestead, and also his interest in the flowage in question, to secure the $320 note, above described, dated August 25, 1851, and also two other notes of even date with the mortgage, one for $100, given, as Eastman says, for the costs which he incurred in his *478 suit against Plumer, and the other for $450, for money furnished Young to buy in the premises in question, at the sheriff’s sale, on the Lake Company’s execution, but as Young did not succeed in making the purchase, this money was returned to Eastman.

16. Will of Susan M. Worster, approved Eeb. 26, 1861, giving her lands to her mother, Sarah W., and to her sister, Sarah J. Worster, in fee.

17. Deed, George W. Young to Thomas Eastman, dated April 18, 1861, of all said Young’s right to redeem the premises in question from the mortgage of April 30, 1860.

18. Deed, Thomas Eastman to Sarah W. and Sarah J. Worster, April 22, 1861, of the same premises Young had previously deeded to James Worster, Oct. 2, 1851; this deed to be void, should said deed of Oct. 2, 1851, prove valid.

19. Deed, James, Sarah W. and Sarah J. Worster, to Thomas Eastman, April 23, 1861, of the same premises, conveyed to said James by said Young, and to said Sarah W. and Sarah J. by Eastman.

20. Demand for a Deed, by Eastman of Plumer and wife, April 26, 1862, according to conditions of bond contained in lease of August 25, 1851.

21. Tender, May 6, 1862, made by James Worster, for Thomas Eastman, to French, of the amount of money paid with interest, by French, for Young’s interest in the premises in question, at sale on execution. In order to secure the money tendered to French, Eastman, in concert with Worster and Young, sold out certain rights in the premises in question, to certain individuals, and took their notes, which were to be void if said Eastman did not redeem from French, but if he did redeem, the notes were to be paid, and the persons paying were to own certain shares of the rights of flowage above mentioned, and were to participate in the profits of the concern pro rata.

22. Thereupon this bill for specific performance of the contract contained in the lease to Young of August 25, 1851, was brought and entered in court, June Term, 1862.

Having thus collected the facts that are material in the case, and arranged them, with such explanations as seemed necessary in order to their correct understanding, it may be well next to examine the law upon this subject of specific performance of contracts, and see what princi]3les have been laid down and established for our guidance.

The granting of a specific performance of a contract for the sale of land, or other contract, is not a matter of right to which the party is entitled when he has proved his contract, but is always a matter of sound and reasonable discretion on the part of the- court, in the exercise of which discretion it grants or withholds relief according to the circumstances of each particular case.

It is not a case requiring the aid of the court ex debito justitiae. It is a settled principle that a specific performance of a contract of sale is not a matter of course, but rests entirely in the discretion of the court upon a view of all the circumstances; and, in exercising this sound dis *479 eretion, tbe court will not decree a specific performance in cases of fraud or mistake, or of a hard and unreasonable bargain, or in case of great inadequacy or exorbitancy of price, or when the decree would in any way produce injustice; and a defendant will generally succeed in procuring a dismissal of a bill for specific performance if he can convince the court-that the exercise of their discretion in granting the prayer of the bill, would be inequitable under the circumstances of his case. Woollam v. Hearn, 7 Ves. 211; S. C. 2 Lead. Ca. Eq. *404; Matthews v. Terwillager, 3 Barb. S. C. R. 50; 1 Story’s Eq. Juris, sec. 769; Western Railroad v. Babcock, 6 Met. 346 , 352; Seymour v. Delancy, 6 Johns. Ch. 222 , and cases cited; King v. Hamilton, 4 Peters 311, 328 ; Canterbury Aqueduct Co. v. Ensworth, 22 Conn. 608 ; Rogers v. Saunders, 16 Me. 92 ; Toby v. Bristol, 3 Story 800 .

Those who desire to secure the aid of equity in enforcing the performance of contracts, must show themselves prompt, ready and eager to perform them and abide by them. So, when either party to a contract of sale fails or refuses to claim or act under the contract, for such a length of time as to give the impression that he has waived or abandoned the sale or purchase, and more especially when the circumstances justify the belief that his intention was to perform the contract only in case it suited his interest, he will necessarily forfeit all claim to equity. Schmidt v. Livingston, 3 Edwards 213; Williams v. Starke, 2 B. Mon. 196 ; DeCordova v. Smith, 9 Texas 129 ; Mann v. Dunn, 2 Ohio N. S. 187.

There are many cases in which the circumstances are such as properly to induce a court of equity to refuse to decree a specific performance of a private contract of sale of land, and to leave the party to his remedy at law, where they would not be sufficient to warrant it in setting aside the contract of sale. Inadequacy of price is one such cause. Seymour v. Delancy, 6 Johns. Ch. 232 . So of many other equitable considerations not. amounting to any illegality or actual fraud in the contract. Unless it appear that the party seeking a specific execution of an agreement has acted not only fairly, but in a manner clear of all suspicion, equity will not interfere; for if there be a reasonable doubt on the transaction, the party will be left to his legal remedy for non-performance of the contract. O'Rourke v. Percival, 2 B. & B. (Ball & Beatty) 58.

In 1814, the Grand Canal Company created certain stock with peculiar advantages to the subscribers, the legality of which was doubtful. In 1831, they empowered the board of directors to exchange for new stock such stock of 1814, as the holders thereof were willing to bring in upon certain terms. The plaintiffs, one of whom was a director and the other a stockholder, and both subscribers to the stock of 1814, refused to accede to the terms offered by the resolution of 1831, and afterwards filed a bill for a specific performance of the terms of the resolution of 1814, which relief was refused them, they having so acted that by their conduct they might have induced other stockholders of *480 1814 to accept of the arrangement proposed by the resolution of 1831. Corballis v. Grand Canal Co., 3 Ir. Eq. R. 29.

'There are few cases in which courts of equity will insist on the maxim that he who seeks equity must do equity, with more rigor than in those of suits for specific performance.

Such being the law applicable to this class of cases, let us apply these principles of law to the evidence in this case on a few points.

,We are satisfied upon the evidence that Plumer and wife were not es-topped to convey this land upon the shore of the bay, or this right of flowage, by any knowledge they had of, or by any part which they took in, or any assent they gave to, the conveyance of Jacob Rowell to the Lake Company, of the same rights, and although his was a warrantee deed, yet all that it conveyed was his interest, which was only a life estate, and at his death the whole property descended to his children 'and heirs.

Jacob Rowell died June 4, 1851. Immediately after his death negotiations were commenced by Young and Worster, to obtain a right in the shore upon Long Bay, on the Jacob Rowell farm. They counselled and assisted Plumer and his wife in getting a division of the farm with Ayers and wife, in such a way as to give Plumer all the shore on the bay. Then a certain right is leased to Young as follows : "One undivided half in common with said Plumers, of all the land on that part of the farm formerly occupied by Jacob Rowell, deceased, situate in the town of Gilford, aforesaid, which is or can be overflowed or in anyway injured by the waters of the bay adjoining said farm, as it is now orean be raised and kept up by the dam situated at Lake Village, so called, and owned by the Winnipisseogee Lake Cotton and Woollen Manufacturing Company, or any other dam not exceeding the height of said dam.” Said indenture also contained a bond to convey the same premises to Young by good warrantee deed upon his paying §320, for which he then gave his note.

The evidence tends to show that this shore thus flowed by the dam is utterly valueless to any person for any purpose whatever, unless it be to Plumer, the owner of the land adjoining, or to the Lake Company, for the purpose of flowage, except as a means to compel the Lake Company to lower their dam, or pay exorbitant damages for this right.

The purposes and objects of the parties appear in the evidence. Plumer testifies that Young said he wanted to buy one half of the flow-age on the Rowell farm; that he said one half the flowage would be worth just as much to him as the whole of it. Plumer spoke of having a talk with Mr. Bell about selling the flowage to him. Young said if he undertook to sell to Bell it would not amount to much, but that if he would lease it to Young, or let him and Worster manage it, he could have any amount of- money he was a mind to . ask; that the company dreaded Worster more than any other man; that if Plumer would trade with them, they would manage the thing free of costs to Plumer, and when the company was ready to settle with them, they would not settle with the company until the company would settle with Plumer and pay him his price. He said if Plumer would sell to him, they would see *481 that his claim did not outlaw. Young said the plan was that they were to go right on and take down the dam, and take the water off down to where the company had a right to keep it, unless they would settle with him ; this was to be done right off, and Plumer was to have his money; he was to have what he asked for his right if it was $40,000.

Worster says : "Young and I had many talks with Plumer as to how the business should be managed to get the whole interest into Plumer’s hands, or his wife’s, and we advised him how to proceed in order to do this, with the understanding that Plumer would convey to Young or to Young and her, one half of the whole interest in the land flowed or injured by the dam as it then was, or any other dam of the same height. After Plumer had got the whole interest in him and his wife, it was agreed to convey to Young. Plumer desired to give him a deed, which Young was disposed to take, but I advised a lease and a bond to convey; Young gave his note, &c., and, when it was paid, Plumer was to deed.” He further says : "We intended to convince the Lake Company that they could afford to páy us more for the land than we paid Plumer for it. Our object in procuring the lease was to sell it to the Lake Company for such price as we saw fit to sell it for. Thought they could afford to pay liberally, but did not fix upon any sum. Should have been glad to have made them believe they could afford to pay $50,000 or more for it.”

We are satisfied, from all the testimony, that the whole arrangement was got up and entered into by the Plumers, with Young and Worster, upon the suggestion and advice of Worster, who has been from the beginning, and is still equitably interested as a party in all the transactions connected with this property here in question since the death of Jacob Powell.

The conveyance from Worster to his daughter was simply to keep the property away from his creditors, and was in fact without any real consideration. So the conveyance from said Worster and wife and daughter, just before this suit was commenced, to this plaintiff, was simply a matter of form, and without consideration; Eastman giving them a writing at the time of the conveyance, that he would hold such interest in trust for them, and he is to reconvey to them, after this suit is terminated, a similar interest. Eastman and Young and Worster have acted in concert ever since Young conveyed to Eastman. In fact, the latter has- been holding these rights and acting as the representative of Young and Worster ever since he took his deed, with full knowledge of what had been done before that, so that he can stand in no better position than either Young or Worster would do if they were either of them plaintiffs in this bill.

When an attempt was to be made by force to tear down the Lake Company’s dam, Eastman leased to Young these premises for sixty days, and Young made the attack on the dam openly, while Worster, who had been enjoined by the court from intermeddling with the dam, was the adviser and the ringleader in the plot, the soul of the whole enterprise, and yet attempting to move in secret, and to keep his agency in the matter hid from view; in which attempt he was not very successful, *482 however, any more than all these parties were in their attempt to destroy the dam.

The purpose and object of Worster and Young and Eastman, from their first agency in this business, has been to compel the Lake Company in some way, either by tearing down their dam, or by the institution of suits, to pay them an exorbitant price for this right of fiowage, and this suit is only another attempt to accomplish the same purpose. The Plumers are not entitled to any particular favor in this matter, as will be seen from the statements of the case, they having entered into the arrangement with the same motives originally, and for the same purpose, as did the other parties. Neither could the Lake Company stand here to object to the prayer of this bill, relying upon their deeds from the Plumers only, as those conveyances were obtained with a full knowledge of the previous existence of the lease and bond for á deed from the Plumers to Young, .of the premises in controversy.

Now, we need not here stop to inquire whether the transactions between any of the parties in this case amount to champerty or maintenance, or whether the arrangements made between Worster, Young and Eastman, either with or without the Plumers, amount in law technically to a conspiracy to extort money from the Lake Company, though it evidently looks something like it. But suppose that technically it amounts to neither of these, and still this is evidently not a contract that has any special claims upon equity to decree a specific performance, for the express purpose of enabling this plaintiff and his associates to fleece the Lake Company according to their original design.

We find that Young’s interest in the premises was attached by the Lake Conapany before he conveyed to Eastman. The fact of this attachment'was not probably known to Young or Eastman at the time Eastman furnished Young the money to pay his note to Bell, and took " the conveyance from Young, which wrns done at that time merely as a matter of security. But when it was ascertained that Young’s interest , was attached before the conveyance to Eastman, then it seemed to be for the.inutual interest of both Young and Eastman, to rescind the contract made with the Plumers, and to recover back of Plumer the money paid by Young on his note; and it seems that both Eastman and Young chose and elected to rescind the contract, and brought a suit against Plumer, upon the note which Young had given for the §320, and which Plumer had signed as surety for Young to Bo by, for the purpose of recovering back the money that Young or Eastman had paid for this right of flowage, or for the land that was or might be flowed. This suit was in court nearly two years after Eastman and Young and Worster had all concluded to, rescind the contract for a deed, by seeking to recover back the money that had been paid on that contract and for the deed, but it was finally decided at the law term of said court, that the payment by Young of the money to Bell, was a payment of the note, and discharged the surety. Eastman v. Plumer, 32 N. H. supra.

During the pendency of this suit, we hear nothing said about demanding a deed from Plumer. It was, of course, understood that they could not have both the deed and the money that had been paid as the *483 consideration for the deed, and while they thought they could recover back the money, nothing was said about the deed; that was abandoned. But a& soon as it was decided that the money could not be recovered back of Plumer in that suit, then a demand is made on Plumer for a deed in December, 1855, the same month and immediately after the decision of the questions in the Law Term.

But there the matter seems to have rested from December, 1855, to April 26, 1862, six years and five months, and no motion was made by plaintiff to secure his rights. Why this long delay ? , Tt seemed but just perhaps to wait till the suit against Young should be disposed of. And hence when Young’s right had been sold on execution, and within the year, a new arrangement had been made of parcelling out shares or stock in the concern, and selling it to others so as to secure the repayment of the money to be advanced as a tender to redeem said right, we find it tendered to French by Worster for Eastman. And thereupon the demand for a deed was renewed, which would not probably have been the fact, if Young’s right as sold on execution had not been redeemed.

Suppose that Plumer has been in fault, and has sometimes wished to carry out this contract and at others to rescind it, the same has been equally true of the plaintiff, and if both are equally in fault, the plaintiff cannot proceed in this proceeding. When the contract was first made all parties agree that the Plumers were willing to give the deed, and proposed to do so, and Young was about to take it, but Worster, thinking that some sort of circumlocution would better accomplish his purposes than straight-forward plain dealing, had it arranged as it was, a deed to be given when the §320 note was paid.

But when the $320 note was paid, Eastman and Young and "Worster all arranged it not to caí! for a deed, but all set themselves at work to rescind the contract, as far as it could be done on their' part, and instead of demanding a deed, sought to recover back of Plumer the money paid by Young, which could only be done by rescinding the contract for a deed, so far as it was in their power to do so. Pursuing this.plan of operations for about two years, and failing, a deed was forthwith demanded ; but then there followed a delay of some six years and a half, during which nothing was done or said about the deed, but the effect of attacks upon the dam, and attempts to destroy it in September, 1859, were tried without marked success; and after the result of the suit against Young in favor of the Lake Company was ascertained, a new demand for a deed was made, and this suit was brought to compel the specific performance of a contract, which they had elected to rescind, and had sought, for nearly two years, to repudiate and get rid of; the plaintiff and his associates in interest having changed their positions as interest seemed to dictate. "W!c do not think the plaintiff, under these circumstances, is in a position to invoke’ successfully the aid of a court of equity in compelling the other party to perform a contract, which he himself has chosen to rescind, and has so strenuously sought to repudiate.

Applying to these facts the principles of latv before stated, it would *484 seem entirely clear, without considering the numerous other questions raised by the arguments in this case, that this bill must be dismissed, not so much on account of any strong equities existing on the side of the defendants, as of the entire want of equity in the case made by the plaintiff, who must thus be left to his remedy at law, if he has any, to recover damages for the non-performance of his contract.

Bill dismissed ivith costs.