Smith v. Smeltzer — 4 Abb. Pr. 469

Majority

p. 469

SMITH a. SMELTZER.

New York, Common Pleas;

General Term, January, 1857.

Headnote

Conveyancing.—Tendee of Deed.—Procuring Certificates.

A party under contract to convey land, is bound, if he executes the deed in another State, or in a county other than that in which the lands lie, to procure such certificate of the official character, &c., of the commissioner taking the acknowledgment, as is necessary to entitle the deed to be recorded.

A tender of a deed properly executed and acknowledged, but which cannot be recorded by reason of the want of such certificate, is insufficient.

Appeal from a judgment entered on the report of a referee.

This action was brought by James M. Smith, Jr., Cyrus Cleveland, and Americus V. Potter, against Henry R. Smeltzer, to recover damages for non-fulfilment by defendant of a certain agreement for the sale of real property, entered into between the plantiffs and the defendant.

The complaint showed that in May, 1854, the plaintiffs being joint owners of certain real property known as Hickory Grove,, in Mamaroneck, Westchester County, in this State, articles of agreement, in writing and under seal, were entered into between plaintiffs and the defendant, by which they agreed to sell and convey the same to the defendant, and he agreed to sell and convey to them, in exchange therefor, thirty-two shares of stock in The New Jersey Patent Tanning Company, and averred a tender of a deed by plaintiffs, pursuant to the agreement, a breach of the contract by defendant, &c.

The answer, among other things, denied the tender of a deed alleged in the complaint, and averred that defendant had been at all times ready and willing to perform the agreement upon his part.

On the trial before the referee, the plaintiffs, among other facts, proved the tender of a conveyance of the real property described in the agreement. This deed was executed by all of the plaintiffs and their wives. The defendant Potter, and his wife, were stated, by recitals in the deed, to be residents of

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Providence, Rhode Island. The deed was acknowledged at Providence, before a commissioner for the State of Hew York resident in Rhode Island, but was unaccompanied by any certificate of the Secretary of State authenticating the official character and signature of the commissioner. There was a like deficiency of any county clerk’s certificate in respect to the acknowledgment by two other parties to the deed, which was taken before a commissioner for the city and county of New York.

The defendants moved to dismiss the complaint upon several grounds, one of which was;—that the plaintiffs had failed to show any tender of a sufficient deed to defendant.

The referee denied the motion; and after hearing .evidence on the part of the defendant, reported in favor of the plaintiffs. Judgment having been entered upon his report, the defendant now appealed therefrom.

Wm. D. Booth, for the appellant.

E. A. Doolittle, for the respondents.

—A motion for a nonsuit was made in the present case, among other reasons, upon the ground that the plaintiffs failed to show that they had tendered a proper deed, and that the place of tender was not the place of ■business of'defendant.

In regard to the latter point, it is sufficient to say that the complaint -avers that the deed was tendered at the place designated .and appointed by the defendant. This is not denied in the answer, and is therefore conclusive (Franchot v. Leach, 5 Cow., 506 ).

The denial of a tender of a proper deed rests upon the supposed defect in the description of the premises, and in the mode of execution.

The deed was acknowledged by two of the parties before a commissioner for the State of Hew York residing in Rhode Island, and there was not attached to the deed any certificate of the Secretary of State, so as to permit it to be recorded. -

The same objection also existed to the acknowledgment of two other parties before a commissioner of deeds of the city and county of Hew York.

The deed could not have been recorded without obtaining a

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certificate from the clerk of the city and county of Yew York as to the one, and from the Secretary of State as to the other.

The validity of this objection depends upon the decision as to which of the parties was under the necessity of procuring the certificates.

It appears to me that without such certificates the conveyance was not perfect. It is true that either party could have procured the same, but until procured the deed could not have been recorded, and in the time which would have been required to obtain them other conveyances or encumbrances might have been put on record, so as entirely to defeat the purchase. The certificates are as necessary as the acknowledgment, and without them the deed, although valid against the grantor, would be of no force or effect against an innocent purchaser or subsequent encumbrancer. It can never be maintained, that a party who contracts to convey land in Yew York may execute a deed in a foreign country, or in another State, and deliver such deed in an imperfect condition. A party who has to deliver a deed of land in pursuance of a contract, is required to deliver it in such a condition as to make it at once operative to the purchaser against all parties. Such is not the case where the deed cannot be recorded, and the purchaser is put to delay and expense to complete the same. If the deed had been executed where the land to be sold was located, such certificate would have been unnecessary ; but when the vendor, for his convenience, executes it elsewhere, he must provide all that is necessary in consequence of such execution, so that it may be recorded where the land lies.

It is said that the objection should have been taken to the reading of the deed before the referee; but such an objection cannot be taken to the deed when produced on the call of the opposing party; and the production was necessary to show that the deed was defective.

It is also said that the plaintiffs were not bound to tender a deed, because by the contract the plaintiffs were only to convey as soon as the defendant was ready, and tendered a compliance on his part. This is so if the defendant sought to put the plaintiff in default. "But the contracts were not dependent, so that the plaintiffs could claim damages without, on their part, first offering a conveyance. They were required to tender the

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deed in order to put the defendant in the wrong; and not having tendered a sufficient deed, I think they cannot recover in this action.

It is not necessary to examine the other questions discussed on this appeal, as, for the reasons above mentioned, the judgment cannot be sustained.

Judgment reversed and case sent back to the referee. Costs to abide the event.