for the entire period of the mortgage. The mortgage, therefore, must contain a provision that in the event the plaintiffs desire to sell all or a portion of the thirteen acre tract, they must set up an escrow account into which they will pay an amount sufficient to adequately secure to the defendant the balance of the equal monthly payments due under the mortgage. The plaintiffs testified that they have always been willing to adequately secure their performance under the mortgage by providing such release of lien provisions as would adequately secure the payments to the defendant over the entire period of the mortgage.
It was also testified that through inadvertence the real estate taxes were not correctly apportioned and that the purchasers have always been willing to correct this oversight. This mistake must be corrected by returning to Mrs. Crane any such overpayment of taxes with interest at 6% before the Court grants specific performance.
The Court is not rewriting a contract that the parties did not intend to make. We are simply conditioning our grant of specific performance upon the plaintiffs meeting these two conditions, which are essential elements of the contract as intended by the parties.
This Memorandum and Order is in lieu of findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.
Accordingly, the following Order is entered:
And now, this 21st day of April, 1975, specific performance is ordered and the defendant is directed to execute the deeds which have been prepared and to deliver said deeds to the plaintiffs, conditioned, however, upon the plaintiffs submitting to this Court for its approval, a mortgage, executed by them, which mortgage shall comply with the terms of the agreement of sale dated June 30, 1972 and, as discussed in this Memorandum, shall contain a release clause providing that in the event the mortgagors desire to sell a portion or all of the subject real estate prior to the termination of the mortgage period, the mortgagors shall place in an escrow account an amount sufficient to adequately secure to the defendant the balance of the equal monthly payments due under the mortgage and specific performance is further conditioned upon the plaintiffs returning to the defendant an amount equal to the overpayment of real estate taxes paid by the defendant plus interest at six percent (6%) which resulted from the incorrect apportionment of said taxes.
LAWRENCE A. RUTH
ATTORNEY AT LAW
ONE STRAWBERRY PLACE
NORRISTOWN, PENNSYLVANIA 19401
TELEPHONE (215) 277-3463
June 26, 1972
Mrs. Margaret P. Crane
West Tisbury, Massachusetts
Re: Sandy Hill Road Property
This letter will serve as an Agreement of Sale. I believe the terms are in accord with our telephone conversation of June 23, 1972. Jim Heffernen has assembled a group of investors, of whom both he and I are principals, who are willing to purchase the 13 acres (more or less) which you own on Sandy Hill Road, Plymouth Township, upon the following terms:
1. The buyers will accept a deed from you and assume the existing mortgage to your mother, the present balance of which is $41,875.00.
2. The sale price shall be $35,000.00, for the house and one acre, and $50,000 for the remaining acreage, for a total of $85,000; you will accept a purchase money mortgage from the buyers for the difference between $85,000.00, and $41,875.00, or $43,125.00.
3. Between settlement and December 31, 1979, you will receive interest on your mortgage, but no principal, at the annual rate of 7%. Beginning on January 1, 1980, you will receive both principal and interest amortized in eight years.
a. On this basis you will receive $3,018.75, per year in monthly installments. (Actually, you are getting more than 7% because you are receiving the interest in advance).
4. Beginning January 1, 1980, the $43,125 will be amortized for eight years at the annual interest of 7%, which will work out to 95 payments of $644.63 and a final payment of $769.63, at which time all principal and interest will be paid.
5. There shall be no personal liability on the mortgage, but the liability shall be limited to the ground only. This will be the identical mortgage you have with your mother, including release provisions.
6. Buyers will pay all transfer taxes, although it is customary that said taxes be borne equally by buyer and seller.
7. 1972 real estate taxes shall be apportioned equally between buyers and seller on a calendar year basis, with an agreed upon settlement date of July 1, 1972. This will require a payment by you one-half the real estate tax which you have advised me is $1,700.00, or $850.00. If you cannot make this payment, perhaps I can talk the investors into paying the entire amount and then reducing the mortgage accordingly. Please let me know because if this is done, the monthly figures I have given you will change slightly.
If these terms are agreeable to you, please sign the enclosed copy and return to me. Upon receipt of same I will prepare the mortgage and make the July 1 payment of $425.00 to your mother. You can expect to receive your first interest check for the month of July on August 1, 1972.
Very truly yours,
LAWRENCE A. RUTH
On this the 31st day of June, 1972, I hereby accept the above terms.
(s) Margaret P. Crane
Margaret P. Crane