OTTO DRESEL & others vs. EBEN D. JORDAN

WELLS, J. The first question to be determined is, whether there is any contract such as to bind the defendant. The writing sets forth the terms of a complete agreement, and it is signed by the party sought to be charged therewith. It is not essential that the writing should bear the signatures of the other party. Old Colony Railroad Co. v. Evans, 6 Gray 25. To make it obligatory upon one party, however, it is necessary that the other shall have accepted or assented to the terms of the agreement it contains.

Mrs. Dresel being a married woman, her subscription of her own and her husband's name to the writing is not alone a sufficient assent to make a legal agreement. There is no direct evidence of previous authority from her husband. The broker who

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negotiated the sale, and drew up and procured the execution of the agreement, testifies that he "was recognized by the Dresels as their agent for the sale of the house." His employment, however, appears to have been effected through a third party, Mr. King, the nature and extent of whose authority does not appear. The deed of conveyance, prepared in fulfilment of this contract, on the part of the sellers, was executed by Otto Dresel May 14, 1869, before the defendant had completed his examination of the title, or given any indication of a purpose not to be held by his undertaking to purchase the property. This was a sufficient confirmation of the authority previously assumed by Mrs. Dresel in making the original agreement, both in respect to his share of the estate, and the share held by her in her own right. The decision in Melley v. Casey, 99 Mass. 241, applies to conveyances, not to executory agreements. The decision in Townsley v. Chapin, 12 Allen 476, applies to agreements to be enforced against the wife; which must necessarily be in writing, in order to comply with the statute of frauds. But no writing being necessary on the part of the sellers, the purchaser cannot escape from the obligation of a contract signed by him, because of an attempted but ineffectual execution of the instrument by the sellers. Hunter v. Giddings, 97 Mass. 41.

The deed signed by Otto Dresel embraced only two thirds of the estate. For the purposes of this decision, therefore, we may consider that the title to the other third was derivable only through the executors of Mrs. Loring. They are parties to the agreement of sale, and to the present suit. An objection is made that such an agreement by executors is illegal and void. It is not in pursuance of their official duty, and is excusable only on the ground that it was done in the interest of the residuary devisee, and without danger of prejudice to the rights of creditors or legatees. As a contract, it binds them individually, not as executors. To fulfil it, they must, in effect, become purchasers of the estate. If there exist a legal cause for a sale, they can become purchasers subject to the liability to be held as purchasing in trust for the heir, or other party having the ultimate interest. Their entering into this contract does not necessarily

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involve any illegality of proceeding in their official character as executors, so as to render it void upon that ground. It is true that the contract, on their part, could not be enforced specifically: because the estate in which the title to the land stands is not bound by the agreement, and they cannot lawfully be restricted in the exercise of their official authority and duty by any such unofficial engagements. But they may be held liable in damages for the nonfulfilment of the contract.

This consideration leads to another objection urged by the defendant, namely, that there is a want of such mutuality as is requisite for an agreement entitled to specific enforcement. So far as this objection rests upon the ground that there was no legal and sufficient agreement on the part of the sellers, for any of the reasons already considered, no further discussion is necessary. Beyond that, the point of the objection is that the seller must have, at the time the agreement is made, such title and capacity to convey, or such means and right to acquire them, as will enable him to fulfil the contract on his part; otherwise the court will not hold the purchaser to a specific performance. But we do not so understand the rule. On the contrary, if the obligation of the contract be mutual, and the seller is able, in season to comply with its requirements on his part, to make good the title which he has undertaken to convey, we see no ground on which the purchaser ought to be permitted to excuse himself from its acceptance. The suggestion of such a rule in Hurley v. Brown, 98 Mass. 545, was foreign to the case there decided, and is not borne out by the authorities cited for it, namely, Tendring v. London, 2 Eq. Cas. Ab. 680, Mortlock v. Buller, 10 Ves. 292, 315, and Pipkin v. James, 1 Humph. 325. The case of Pipkin v. James was an action at law, to recover back the purchase money of "one ice-house and lot, $140," included in a bill of sale with articles of personal property. The grounds of action were two: 1st. "that the contract is void by the (operation of the) statute of frauds and perjuries;" 2d. "that the defendant had not, at the time of the sale, nor yet has, any title to the property sold." The action was sustained upon both grounds.

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The case of Tendring v. London is referred to in 2 Eq. Cas. Ab., as supporting the doctrine for which it is cited in Hurley v. Brown; but as the case itself is not reported, and has never been published, we are unable to learn what was the real point adjudged. The reason assigned -- to wit, "for every seller that will have such a bargain executed must be a bona fide contractor" -- indicates that the rule intended to be established was much less strict than the statement for the support of which it is cited.

In Mortlock v. Buller, no such question was decided or raised. The reference on page 315 is to an apparent expression of dissatisfaction by Lord Chancellor Eldon with the contrary rule, in case "a person carries an estate to market, not having any title at the time." But he agrees that "it is much too late to discuss the question whether it would have been wholesome originally to have held that he should not have specific performance."

On the other hand, the same learned chancellor, in Jenkins v. Hiles, 6 Ves. 646, 655, remarks: "It is impossible to deny that, upon the old authorities, a specific performance might be obtained, if the title could be made good before the report. The court would execute the contract then, regard being had to the justice due to particular cases."

In the later case of Coffin v. Cooper, 14 Ves. 205, he held that, if the master report that the plaintiff will have good title upon getting in a term, procuring administration, &c., the court will put him under terms to procure that speedily; and the motion of a defendant to be discharged, because the master reported that a good title could not then be made, was refused, the plaintiff having in the mean time obtained an act of parliament to enable him to perfect the title.

The equitable rule is established by numerous authorities, that where time is not of the essence of the contract, and is not made material by the offer to fulfil by the other party, and request for a conveyance, the seller will be allowed reasonable time and opportunity to perfect his title, however defective it may have been at the time of the agreement. And in all cases

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it is sufficient for the seller, upon a contract made in good faith, if he is able to make the stipulated title at the time when, by the terms of his agreement or by the equities of the particular case, he is required to make the conveyance, in order to entitle himself to the consideration. Boehm v. Wood, 1 Jac. & Walk. 419. Wynn v. Morgan, 7 Ves. 202. Hoggart v. Scott, 1 Russ. & Myl. 293. Salisbury v. Hatcher, 2 Y. & Col. Ch. 54. Dutch Church v. Mott, 7 Paige 77. Baldwin v. Salter, 8 Paige 473. Seymour v. Delaney, 3 Cowen 445. Hepburn v. Dunlop, 1 Wheat. 179. Richmond v. Gray 3 Allen 25, and cases cited. Barnard v. Lee, 97 Mass. 92. Story Eq. §§ 776, 777.

In the present case, although a fixed time was named in the contract for conveyance of the title, the defendant was himself at no time ready to receive it until after the plaintiffs had, by the sale to Cram, enabled themselves, by means of a quitclaim deed from Cram, to transfer the whole title. The plaintiffs were not therefore at any time in default, in respect to the title to this third part of the estate.

The defendant cannot fairly object to the receipt of one third of the title through a deed from Cram. The very form and terms of the agreement imply that the title is to come from more than one source, and may require more than one deed of conveyance. The conveyance to Cram under the executors' sale, and release from Cram to the defendant, are the legitimate means of carrying into effect the contract of the executors with the defendant. The sale to Cram was for an amount more than sufficient to satisfy all debts and legacies; and the executors are chargeable with the amount, whether they ever receive it or not. A delivery to the defendant of a deed from Cram, in performance of the agreement of sale, being complementary to the part execution thereof by Mr. and Mrs. Dresel, and necessary to render the fulfilment by them available, will forever preclude them from any attempt to avoid the executors' sale. Besides, there was an offer to confirm the title thus made, by procuring a warranty deed from Mr. and Mrs. Dresel for delivery on the 1st of December, to which time the defendant had requested that the business of completing the transfer should be postponed for his

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convenience in making the payments. As Mrs. Dresel was sole heir or residuary devisee of Mrs. Loring, this proposition would have cured all objections, both to the execution of the contract by the executors and to the form of making title in its fulfilment.

The objection to the inconsistency between the date of the deed from Cabot to Higginson, and the date of the certificate of acknowledgment, is not sufficient to justify a refusal to take a conveyance of the property. A date is not essential to the instrument of conveyance. It takes effect from delivery. If a date be written in the deed, it is not conclusive, but may be controlled by other recitals in the deed, or by extrinsic facts or circumstances. Lee v. Massachusetts Insurance Co. 6 Mass. 208. Harrison v. Trustees of Phillips Academy, 12 Mass. 456, 463. Jackson v. Schoonmaker, 2 Johns. 230. The certificate of acknowledgment is presumed to be correct, and will not be controlled by the date inserted in the deed. Even if that date was inserted subsequently, and indicates the true time of delivery of the deed, the discrepancy does not render the deed invalid. The real date of a deed is the time of its delivery; which may be subsequent to its acknowledgment, and even after registration. Hedge v. Drew, 12 Pick. 141. Parker v. Hill, 8 Met. 447.

An objection of real importance to the title offered to be conveyed is, that the deeds, proposed to be given, subjected the estate to a condition for the payment of the Cabot mortgage and indemnity of the grantors; whereas the agreement provided only for a sale subject to the mortgage, which was to be assumed in part payment of the purchase money. The title derived from Higginson seems to have been impressed with the same conditional character. Although proceedings to enforce the condition, by way of forfeiture, may be stayed upon payment after breach, yet the qualities, imparted to the estate by such a condition, are essentially different from those which result from a mortgage assumed merely as an incumbrance. Sanborn v. Woodman, 5 Cush. 36. This objection is fatal to the plaintiffs, unless it has been waived by the conduct of the defendant Park v. Johnson, 7 Allen 378.

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It appears from the testimony, that this fact in respect to the title was made known to the attorneys of the defendant very soon after the date of the agreement, and before the deed was sent abroad to be executed by Otto Dresel. Some objection was made to the condition; but after two days' consideration an answer was received which justified the plaintiffs' attorney in supposing that the objection would not be insisted on; and accordingly the deed was forwarded to Europe for signature, in the form in which it was submitted to the attorneys for the defendant. Mrs. Dresel vacated the house, and sold to the defendant the gas fixtures and portions of the furniture. The defendant proceeded in the further examination of the title, and did some acts looking to occupation; and when his purpose to retain the place for occupation was abandoned, he caused it to be advertised for sale. The plaintiffs' attorney having received the deed from Otto Dresel May 31, and notified the defendant's attorney thereof at once, objection was made on account of the date of the acknowledgment of the deed from Cabot to Higginson, and measures were taken to remove that objection. Various delays occurred, not by any fault of the plaintiffs, by which the conclusion of the business was postponed until the 1st or 2d of September; when the parties came together, and, to meet the defendant's convenience, arranged that $ 4000 only of the purchase money should be paid down, and $8000 remain until December 1, and that the title deeds should, in the mean time, be held by the plaintiffs' attorney, with proper security for their ultimate delivery upon payment of the balance of the purchase money. This arrangement, however, being made by the defendant's attorney, was subject to his determination upon an objection then for the first time made, and, as his attorney testifies, then for the first time known to him, namely, that the contract was signed, on the part of the sellers, by executors. No other objection was, at that time, made; and objection to the conditional clause, relating to the mortgage, had not been renewed since its first suggestion in April. On the 13th of September the objection raised in regard to the signature by the executors was insisted on. The defendant then refused to accept the conveyance and to complete the purchase.

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It does not appear whether the condition would or could have been released, if that objection had been insisted on. But the defendant might have avoided a forfeiture by payment of the mortgage debt when due; and the plaintiffs, by taking up the mortgage, might have enabled themselves to discharge the condition. The mortgage note was to fall due on the 12th or 15th of September. The plaintiffs were themselves exposed to the risks of forfeiture if the defendant did not complete his purchase; and his delay from April till September, by leading them to rely upon him to pay the mortgage debt, as part of his purchase money, and to omit other provision for its payment, tended seriously to embarrass them in the protection of their interest in the estate against such forfeiture.

The objection is not one which affects the value or cost of the estate, or the completeness of the title which the purchaser will acquire upon full performance of the terms of his agreement. It is a contingent liability; or, rather, a more peremptory and harsh security for payment of a portion of the purchase money, than was contemplated by the terms of the agreement. The conduct of the defendant, as above narrated, constitutes a clear and decisive answer to the objection as taken by way of defence to this suit. It is a waiver of the objection. Gerrish v. Norris, 9 Cush. 167. Salisbury v. Hatcher, 2 Y. & Col. Ch. 54. McMurray v. Spicer, Law Rep. 5 Eq. 527, 542.

In the opinion of the court, none of the objections made by the defendant to the contract, or to the title offered to be conveyed, ought to avail him in defence. The plaintiffs are therefore entitled to a

Decree for specific performance.