William A. Kissick, Plaintiff, v. Thomas Edward Rees and Anna C. Rees, Defendants

William A. Kissick, Plaintiff, v. Thomas Edward Rees and Anna C. Rees, Defendants. Second Department, March 2, 1906. Specific performance—when vendor not entitled to reimbursement for taxes paid. The vendor, in a contract for the sale of real estate, who fails to deliver a deed ■ of the premises--at the time agreed upon, and Who pays .taxes which became a lien upon the premises subsequent to the time stipulated for the delivery of the deed and before the commencement of an action by the vendee, to compel specific performance, which action was adjusted by the allowance to the vendee of the rental value of the premises from the date when the deed should have been given, and to the vendor interest on the purchase price during the saíne period, cannot recover the moneys so paid for taxes, - . The vendor, by his wrongful act, having compelled the vendee to resort to a court of equity for relief, no consideration of equity would warrant the court in making a new adjustment between the parties by imposing the taxes on the vendee. Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure. E. H. Benn, for the plaintiff. William T. Croak [James S. Lawson with him on the brief], for the defendants. [MAJORITY — Woodward, J.:] Woodward, J.: The defendants entered into a contract with the plaintiff for the sale of certain real estate, defendants agreeing to give title on the \ 1st day of October,-1901. The defendants failed to give the deed as agreed upon in their contract and retained possession of the premises. ■ On the 13th day of October, 1901, while thus in possession of the premises, the defendants paid the taxes, which had-become a lien upon the premises, on the third day of the same ' month, amounting to $135.72. In November, 1901, the plaintiff brought an action for specific performance of the contract, the litigation resulting in a judgment in his favor. The defendants-set up various defenses, in none of which tl\ey succeeded, and before the entry of judgment'they gave the plaintiff a deed of the premises, this deed bearing date of March 23, 1905. In the adjustment the defendants paid to the plaintiff the rental value of the premises from the first day of October, the date when the deed should have been given, and the plaintiff allowed the defendants interest upon the purchase money during the same period. The defendants now insist that the plaintiff is legally bound to pay the amount of the taxes paid by the defendants in October, 1901, and this is the question to be determined here.' We are unable to understand why the defendants, who were unquestionably in the wrong in this controversy, should be allowed to recover any moneys which they may have been called upon to pay in taxes while in the possession and ownership of the premises. The defendants, having wrongfully retained possession and title to the premises involved in the controversy, are hardly in a position to say that the plaintiff should reimburse them for moneys which they alone were legally liable to pay. This is not even a case where r third party has assumed to' pay the debt of another, in which case there would tie no liability, except in a case where such payment had been requested.. (National Bank of Ballston Spa v. Board of Supervisors, 106 N. Y. 488.) In this case the' defendants, as the legal owners of the' premises,, were bound' to pay the taxes which had become a lien, and'having wrongfully retained such ownership, compelling-the plaintiff to: resort to a court of equity for relief, we are of opinion that the judgment decreeing .specific performance contemplated what appears' to have been, done, the payment to the plaintiff of the rental value of the premises, less the interest' during the time title was withheld, and no consideration of equity • would warrant this court in making a new adjustment'and imposing the taxes upon the plaintiff. ' ' ' The plaintiff should have judgment, ’ Hieschbebg-,' P. J., Jenks and Gaynór, JJ., concurred; Hooker, J., concurred in result. - . Judgment-for plaintiff, without costs, o.n-submission of controversy.