Darrow v. Bush (45 A.D. 262, 1899)

Adams, J.:

Upon the trial of this action the plaintiff’s complaint was dismissed, upon the merits, and the learned counsel for the respondents now insist that there are several distinct grounds upon which the decision of the trial court can be sustained. After giving to this. contention the consideration it is entitled to receive, we have concluded to affirm the judgment appealed from and to rest our decision solely upon the ground of the plaintiff’s laches in resorting, to. the relief sought in this action, without determining the various other questions discussed upon the argument and in the briefs of counsel.

It is a familiar rule of equity jurisprudence that the granting or withholding specific performances is a matter entirely .within the-discretion of the court; and that when a party invokes such a¡, remedy lie must, in. order to entitle himself to it, show that in the circumstances of his particular case it is just and equitable. (Story Eq. Juris. §§ 161, 742, 776; Day v. Hunt, 112 N. Y. 191; Conger v. N. Y., W. S. & B. R. R. Co., 120 id. 29; Miles v. Dover Furnace Iron Co., 125 id. 294.)

In the case now before us it seems quite clear that the plaintiff has fallen far short of the standard established by the rule just adverted to. By his purchase of the contract in question he. acquired no better or other right than was possessed by his assignor,, for he took it subject to all the equities existing between the original vendors and vendee, and occupies precisely the same positiqn the vendee would if the contract had never been assigned. This being’ the case, it will be profitable to indulge in a brief survey of the situation.

. It appears that the contract under consideration was executed some twenty-five years prior to the bringing of this action; and although the vendee assumed to pay the purchase price of the lands therein mentioned in six equal annual payments, she failed to meet.her engagement in that regard ; that while in the possession of the lands-contracted for she stripped them of the timber standing thereon,, which at the time was supposed to constitute their chief value;; that she subsequently removed from and virtually abandoned the premises, although before doing so she- assumed to transfer the contract for the purchase thereof. It also appears that the vendee, by her oral, and her transferees, by their written, declarations, repeatedly admitted that whatever interest had been acquired under the ■contract was practically forfeited, and it is a fair and reasonable presumption that no attempt would ever have been made to enforce its performance had not the lands embraced therein become suddenly valuable* by reason of the discovery of large deposits of oil beneath their surface, for it seems that, as late as June 17, 1896,. Q-allagher, whose assignee was then the owner of the contract, when asked by a representative of the vendors whether he wanted to pay up the amount due upon the contract and take a deed of the premises, replied, “ I think I will wait until they get a well down.”

Thus it will be seen that only about one-third of the purchase-price of the.' premises has been paid, and that during a period