Jones v. Gardner — 10 Johns. 266

Majority

p. 270

Jones against Gardner.

Headnote

'Where A. vly to 8. a c!ii>ed»h‘on toe iat May, covenanted to that day, soo of ""the chase-money ; that the cove-dependent,6 Mvery^of toe deed and toe tiie mmoney ranTacts?CUl"

And where A. on the 1st jMatfy t8U, tendered to B. a deed of the farm, executed by A. and his wife, not acknowledged by the wife, and which did not embrace all the land of the farm; it was held that this -was not a performance of the covenant of A.

A covenant to convey the titles means the legal estate in fee, free from all valid claims, liens or encumbrances whatever. '

THE plaintiff declared on an agreement in wilting, dated the 23d March, 1811, which stated that Jones had contracted with Gardner, “ to convey to him a farm of land situated in the town Qf Hinsdale, on which Samuel Gilbert now lives,” on the fob lowing terms, to wit, 1,820 dollars, to be paid as follows, to wit, 500 dollars on the first of May next, 300 dollars in two years thereafter, 300 dollars in three years, 300 dollars in four years, 300 dollars in five years, and 120 dollars in six years. Gardner was to have possession on the 1st of April then next; and whenever he received from Jones “ a good and sufficient deed in law *° * the title of the said farm of land with the appurtenances,” Gardner was to give to Jones a bond and mortgage to secure the whole of the purchase-money. And it was further a between the parties, that the party refusing to fulfil the con

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tract should forfeit to the other the sum of 1,000 dollars, for the payment of which they mutually bound themselves; the plaintiff binding himself under that penalty to execute the deed to the defendant on the 1st iVia~j then next, if the plaintiff paid the 500 dollars.

ALBANY,

August, 1813.

The cause was tried at the Columbia circuit, in December, 1811, before Mr. Justice Yates. The plaintiff gave in evidence a mortgage from Samuel Gilbert, dated the 9th May, 1801, to Robert Van Rensselaer, for 500 dollars, in which the farm was described by particular courses and distances, and as containing 109 acres. This mortgage was assigned to one Seymour, and by him, on the 5th of December, 1809, assigned to the plaintiff. The plaintiff also produced a mortgage from Samuel Gilbert to the plaintiff, for the same farm, dated the 5th May, 1808, for securing the payment of 1,306 dollars and 74 cents, in which mortgage the farm was particularly described by metes and bounds, and as “ containing 109 acres, more or less, all the said farm now in possession of the party of the first part.” The plaintiff produced a deed from the plaintiff and his wife, dated the 1st May, 1811, to the defendant for the farm, as described in the last-mentioned mortgage from Gilbert to the plaintiff, and as containing 111 acres, 2 rods and 7 perches of land, which deed contained full covenants, and was tendered in due form to the defendant, but was not acknowledged by the wife of the plaintiff. The plaintiff then offered to prove that this deed was drawn in conformity to the description contained in the mortgage, by the agreement of the parties, which was objected to, but the objection was overruled by the judge.

Samuel Gilbert, who was sworn as a witness, testified that the farm in question wras leased from Van Rensselaer, and the boundaries described in the lease $ and that he had no other land than what was contained in the lease. He supposed he cultivated about 5 acres of land adjoining, not included in the boundaries of the lease, which left out at least half of the exterior fences, and some acres of land. It appeared that when the agreement was made, the plaintiff told the defendant that he did not know the west boundaries, but they were contained in the original lease, which was not, however, shown.

It was proved, on the part of the defendant, that when Jones showed him the farm, he pointed out the fences as standing on |he boundary lines, and that the farm extended to them. It ap

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peared that the defendant took possession of the farm in Aprils 2811

A verdict was taken for the plaintiff, for 524 dollars, by consent, subject to the opinion of the court on a case containing the above facts.

E. Williams, for the plaintiff,

contended that the covenants were mutual and independent, and that the defendant was bound absolutely to pay the 500 dollars: but if it were otherwise, he insisted that the tender and refusal of the deed was tantamount to a performance on the part of the plaintiff, who was entitled to recover the money agreed to be paid by the defendant. The agreement was silent as to the execution of the deed by the wife of the plaintiff; her acknowledgment was not, therefore, requisite to give validity to the tender. Her interest was contingent only. It may be objected that the premises did not include the whole farm; but it was proved that the description in the deed was according to the agreement and understanding of the parties.

Van Buren, contra,

insisted that the covenants were dependent, and that it was the clem- intention of the parties, that the deed should be given before the purchase-money was paid or secured.^[1]

Again, a good and sufficient deed implies a deed from the wife, so as to convey the whole title, free and clear from all encumbrances. The right of dower is a vested right, and forms part of the title. The deed tendered was not, therefore, sufficient.

Further, the deed tendered did not contain the whole of the farm in the possession of Gilbert. Any parol evidence, or agreement of the parties was not admissible to explain the written contact.^[2]

The covenants between the parties were dependent. plaintiff was to convey on the 1st of Map, and the defendant on that day was to pay 500 dollars, being a part of the consideration. The intent and good sense of the contract was, that the 500 dollars were not to be paid, unless the deed was ready for delivery. They were to be concurrent acts; and this was the construction of a similar contract in the case of Green v. Reynolds. ( 2 Johns. Rep. 207 .) So also the deed was not to be delivered without the payment of the 500 dollars, and .a bond and mtirtgage

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for the residue of the purchase-money. Taking the contract together, this was the just and sound construction.

The deed was, however, tendered, and the boundaries of the land therein mentioned were according to the description given by Gilbert himself in a mortgage from him to the plaintiff. But this Was not a compliance with the covenant, for by that the cónvey- ' atice was to be of the farm, of land on which Samuel Gilbert lived, and it is in proof, by the testimony of Gilbert, that the description in the mortgage did not embrace all his farm, but left out, at least, half of all his exterior fences. There was also another objection to the deed, which was, that the wife of the plaintiff had not executed it with the solemnities required by law to bar her dower; and as the plaintiff, by the contract, was to give a sufficient deed to vest in the defendant “ the title of the said farm,” the deed was imperfect, and did not, in this respect, fulfil the contract. The title meant the legal estate in fee, free and clear of all valid claims, liens, and encumbrances whatsoever. It is the ownership Of land, the dominum directum et absolutum, without any rightful participation by any other person in any part of it. If the plaintiff’s wife had a contingent life estate in one third part of the farm, the defendant had not a clear and absolute title. If this claim of dower was not inconsistent with the title to be vested in the defendant, it would be difficult to maintain that any other life estate in the same, in reversion or remainder, or any judgment or other lien thereon, would be incompatible with it; and the title might thus be embarrassed and weakened, until it had lost all its value and strength.

For want, then, of showing the tender of a sufficient deed fo convey the title, the defendant is entitled to judgment.

Judgment for the defendant!