Majority
p. 395Folliard against Wallace, survivor of Wells and Wallace.
Headnote
W. covéfmírthe Vüe to a lot of latid conveyed to him by F.s should prove good and suffiicnt in law against all other claims, that he would pay to F., three months after he should be well satisfied that the title was undisputed and good against all other claims, the sum of 150 dollars. In an action brought by F, against W. for the money, it was held that the award’of the Onondaga commissioners on the title in favour of W. ought to satisfy him, and,that the award of the commissioners was a public act of which he was bound to take notice at his peril, without any notice from F. W. in his plea to avoid the payment of the 150 dollars, alleged, that one H. and his wife claimed title to the lot of land conveyed to him- by F.,and against the title of F., but the ploa was held to be bad, because it did not state that the title of H. and his wife was a lawful claim or title, and prior to, and better than the title conveyed by F. Though it be not necessary forthe defendant to set forth the particulars of such title, yet he must allege it to be á lawful title, and existing prior to, and at the time of the deed to him. It is not enough for the defendant to allege that he is not, satisfied with the title, without some good reason be assigned for his dissatisfaction, as some lawful encumbrance ov claim against it. The defendant is not to judge for himself, but the law will determine when he ought to be satisfied.This was ah action of covenant. The declaration contained four counts. The first count set forth the deed, bearing date the 19th of August, 1795, by which the de
p. 396
fendant and Wells engaged, that in case the title sold ter. them in fee that day by the plaintiff, being for lot No. 12, jn ^jje township of Hector, containing 600 aci‘es, should prove g'ood and sufficient in law against all other claims that they would pay to the plaintiff, three-months after they should be well satisfied that they held the said 600 acres of land undisputed by any person whatsoever', and against all other claims as aforesaid, the further sum of 601. The plaintiff averred, that after the death of Wells, to wit, on the 13th April, 1800, the Onondaga commissioners adjudged- and awarded that the title to the said lot having been satisfactorily deduced to Wells Wallace, the defendant, WallaceT was entitled to an indefeasible estate of inheritance in- and to one moiety of the lot, and. the children of Wells to the other moiety, subject to the dower of the widow of Wells; and that no dissent or ejeetment was entered by any person-within the time required by law,'of all which the defendant, on the 1st day of February, 1806, had notice. The plaintiff further averred, that the title in fee was fully vested in. the defendant and the heirs of Wells, and so the-defendant hath broken-his covenant, &e- The second count was to the like effect, with an averment that the defendant and the heirs of Wells loere satisfied, and that the plaintiff conveyed to them a perfect title- The third count was to the like effect, averring also that there was no elder or better title. The fourth count contained a colloquium, and the averments as in the other counts.
The defendant pleaded three- pleas» The first plea,, after craving oyer and setting forth the covenants, was to> all the counts, that the-award of the commissioners set forth in .the first count did not vest a title in fee in the defendant and the heirs of Wells, against all persons, at the expiration of three years thereafter, because, the act provides that it shall not extend to, nor prejudice, infants, ■feme coverts, or persons not of sound mind, or in prison,,
p. 397
who are allowed three years, after their disability is removed, to make theipdissent, and to bring their suit, and avers, that John Henry and Lydia, his-wife, on the 1st November, 1805, before the bringing this suit, did claim title to the said lot, and still do claim title adverse to the title of the defendant and the heirs of Wells, and in.-right of Lydia, under a deed purporting to be executed by the plaintiffto Abraham Nelson-, anterior to the deed to the defendant and Wells; and that the said Lydia being a feme covert, was not barred by the said award, and- the limitation of three years thereafter, .and so -the said title hath not proved to be good and sufficient, bat is subject to the said claim ; by reason whereof the defendant and the heirs of Wells have not been satisfied that the said lot can be held undisputed by any person whatever, and this he is ready to verify, &c.
The second 'plea was also to the whole declaration, and set forth — that by the act for registering Onondaga deeds, passed the 8th January, 1794, all deeds concerning the isaidslands were, before the 1st May¡ 1794,’to be deposited with the clerk of the city and county of Albany, and all deeds not so deposited were to be adjudged fraudulent and void against subsequent purchasers-; and that by the act on the same subject, passed the 27th March, 1794, the time for depositing the said deeds was prolonged to the 1st May, 1795, and that a deed dated the 5th August, 1784, and purporting to be made by the plaintiff fc® Abraham Nelson, was deposited with the clerk of Albany, within the said time, by which deed .the plaintiff released all his rights and claims, as a soldier, to the military lands to the said Abraham Nelson and his heirs; and the defendant avers, that the lands so released and the said lot are the same; and that before the commencement of the suit, i. e. on the 13th April, 1801, and both before and since, John Henry and Lydia, his wife, did, and do still claim titleto the same, in right of the ;said Lydia, under the said deed to Nelson, and by virtue thereof do keep the defendant, and the heirs of Wells out of possession ; and that the said Lydia, being a feme covert, was not bound by the said award, and the limitation of three thereafter, because, by the act of the 24th March, 1797, the rights of feme coverts, &c. were saved, so that they make their dissent within three years after disability removed, and bring their suit; and that the title to the said lot hath not yet proved good and sufficient in law against all claims whatsoever, but is still subject to the same claim, which i§ not barred, &c. — and so the defendant and the heirs of. Wells are not satisfied, &c. that the said lot can be held by them undisputed, and this he is ready to verify, &c.
In the third plea the defendant alleged, that the said award at the expiration of three years thereafter, did not vest a title in fee in the defendant and heirs of Wells, against all- persons, because the act of the 24th March, 1797, provides against the case of feme coverts, infants, &c. if they make their dissent, and bring their suit within three years after their disability is removed, and that Henry and Lydia-, his wife, before the said award, to wit, on the 12th April, 1800,. did claim title to the lot, and still do in a right of the said Lydia, as a feme covered, under a deed made, as therein alleged, by the plaintiff to Nelson, on the 5th August, 1784, and deposited in the clerk’s office, according to law; and that by Virtue of that deed, the said Henry and wife do keep the defendant and the heirs of Wells out of possession; and that the said Lydia, being a feme covert, at the time of the award, was not. barred, &c. — and so the title, &c. is not good and sufficient, but subject to the said claim, &c. and the defendant and the heirs of Wells are not satisfied, &c.
To the first 'plea there was a 'special demurrer, because it was multifarious, double, and no answer to the whole' declaration; because it does not set forth that the com»
p. 398
missioners did act upon the deed said to be executed by the plaintiff, nor dees it state how Lydia, the "wife of Henry, derives title under Nelson; because it is argumentative, and amounts to the general issue; and be,cause it does not aver an existing good title in Henry or his wife, and is no answer to the averment in the declaration, that the defendant’s title’is good, and that he is satisfied.
To the second plea, the plaintiff {protestingthat the defendánt and the heirs of Wells have a good title, and are well satisfied, and that the deed said to have been executed by the plaintiff to Nelson is a forgery, and known to be such by the defendant, and that Lydia is a stranger to it, and so could derive no title under it) replied, that the commissioners had the deed, said to have been executed by the plaintiff to Nelson, under consideration, and decided against it, and that an absolute title was awarded to the defendant and the heirs of Wells, of whiph they are satisfied, and this he is ready to .verify, &c.
Replication to the 3d plea, {'protesting that the defendant by collusion suffers Henry and wife to keep him out of possession, and protesting, &c.) that' the defendant hath a good title, of which he is satisfied, and this he is ready to verify, &c.
To the replication to the second plea, there was a rejoinder, that the defendant does not know Nelson’s deed to be a forgery, and that he and the heirs of Wells are . not well satisfied with their title, and this they are ready to verify, &c.
Rejoinder to the second replication, that the defendant hath not suffered Henry and his wife to keep possession by collusion or consent, and that he is not. well satisfied with his title, and this he is ready to verify, &c. .
There was a special demurrer to the two rejoinders, ,because they traverse matters alleged in the replication
p. 399
by way of protestation only, and they neither confess, avoid, nor deny that part of the replication that the commissioners had Nelson's deed under examination, and decided against itbecause they conclude with a verification, and not to the country, and because they are argumentative, want certainty, &c.
J. W. Yates,, in support of the demurrers.
The first plea is bad. 1. Because it does not aver an actually existing better or elder title, than the one granted by the plaintiff.[3] It merely states the deed to Nelson as alleged to be executed by the plaintiff: 2. The plea does not state the nature and extent of the title of Henry and his wife, whether they claim in fee, for life, for years, at will, or otherwise. The defendant merely avers that they claim title generally. As the extent of the title claimed is not set forth, the court will intend the least estate. Covenants and deeds-poll are to be construed most strongly against the covenantor, and most beneficially to the other party.[3] If it was an estate for years, it must be considered as a mere chattel real, and could pass'to the husband and be reduced to his possession, and so was barred by the award of the commissioners. 3. The plea, beside being argumentative and double, offers an issue on a fact not traversable in its nature, namely, whether the defendant was or was not satisfied with the title. Whether the defendant be satisfied or not, must be a deduction from the fact of title or no title. The defendant must show good reasons for not being satisfied; and not a mere arbitrary declaration of his dissatisfaction. The reason assigned by the defendant is frivolous. It amounts to this, that there is an adverse claim, which I neither know, nor can affirm to be good, and therefore I am not satisfied. 4. None' of the pleas answer the plaintiff’s express averment, that the defendant and the heirs of Wells, have a good title. 5. The third plea, though it professes to go to the whole decía
p. 400
fation, answers only the count which sets forth the award of the commissioners, and is wholly silent .as to the other counts. The rejoinders are .also bad.
Champlin, contra.
We admit that the rejoinders are bad. The only question is on the demurrer to the plea. The declaration does not state that any notice of the award by the commissioners was given to the defendant. The defendant was to be satisfied as to the title; the money was payable on that condition, and he was to be the sole judge of that satisfaction. This was a precedent condition, and the question is, whether he was satisfied as to the goodness of the title, not whether, in judgment of law, there was a good title. Again, though the declaration avers that the defendant was satisfied, it does not state that be was so three months afterwards.— There could be no violation of the contract until the three months had elapsed. Three things were essential' for the plaintiff to aver in his declaration. 1. A good and sufficient title. 2. That the defendant was satisfied with it. 3. That three months had elapsed.
The general averment in the plea as to the outstanding title is sufficient. In Hodgson v. the East India Company,[3] it was decided that the party might state generally another title, without setting forth the particulars of such title. '
Yates, in reply.
The defendant in his plea does not state a better title outstanding. No notice of the award was necessary. No notice is required unless the fact is exclusively within the knowledge of the plaintiff. Here the fact was equally within the knowledge of both parties, and the defendant was bound to know it at his peril.[4] He was a party to the award, and was before the commissioners. There is a substantial averment of notice. After a plea in bar the defendant cannot ayail himself of this objection. The plaintiff has averred that the award was made.more than three months before the suit.was
p. 401
brought. Again, the time of the title’s proving good must have relation back to the date of the plaintiff’s deed, on the 19th August, 1795, for the decision of the commissioners is on that deed.
The questions in this case principally respect the validity of the pleas. The declaration is correct, &nd states all that was requisite, in the first instance, to show a good and undisputed title conveyed to the defendant, and that he was bound to pay the money. He was to pay three months after being well satisfied, &c. and the award of the Onondaga commissioners ought to have satisfied him, until some lawful title appeared to controvert the one held under that decision. As that award was a public act, of which the defendant must be presumed to be conusant equally with the plaintiff, he was bound to take notice of it at his peril, and without further information from the plaintiff. (Cro. Ja. 390. 432.) It was then incumbent upon him, in order to avoid the obligation to pay, to state in his plea a lawful claim or title to the land prior to, and better than, the one conveyed to him by the plaintiff. Though the title derived from the plaintiff was to prove good and sufficient in law against all other claims, yet the covenant must be construed to mean lawful claims, in like manner as a covenant against the acts of all persons whomsoever, is understood to mean the acts of persons having lawful title, and not to extend to the acts of wrongdoers. So a general warranty is restrained to lawful interruption. (2 Saund. 178. and note 8. 3 Term, 584. 587. Greenly, &c. v. Wilcocks, ante, 4.) The law will never presume that the covenant applied to the wrongful claims of others, unless it be so expressed, because the law gives full protection against all such claims. But the first plea states only, that, Henry and his wife did claim title to the lot under a deed purporting to have been executed by the plaintiff’to one Nelson. It was not necessary for the de
p. 402
fendant to have set forth the particulars of that title, foi‘ he was a stranger to it; but he ought, at least, to have alleged thát the claim of Henry and his wife was a lawful claim, and lawfully derived under the deed to Nelson, and that the title existed before or at the time of the deed to himself. This appears, from the course of the authorities and precedents, to be an indispensable averment. (Wotten v. Hele, 2 Saund, 177, and note 10. at p. 181, a. Foster v. Pierson, 4 Term, 617. Hodgson v. E. I. Company, 8 Term, 278.) Without such an averment the court cannot take notice of the claim, for it may be one altogether frivolous and without colour, and not maintained with sincerity. Nor will it do for the defendant to say he was not satisfied with his title, without showing some lawful incumbrance or claim existing against it. A simple allegation of dissatisfaction, without some good reason assigned for it, might be a mere pretext, and cannot be regarded. If the defendant were left at liberty to judge for himself when he was satisfied, it would totally destroy the obligation, and the agreement would be absolutely void. But here was a real obligation contracted, and the true and sound principle is laid down in Pothier, (Traite des Obligations, No. 48.) that if A. promises,to give something to B. in case he should judge it reasonable, it is not left to Ads choice to give it or not, since he is obliged to do so, in case it be reasonable. The, law in this case will determine for the defendant when he ought to be satisfied; and until he shows some lawful claim or title to countervail that which he derived from the plaintiff, and which has been confirmed by the award of the commissioners, the intendment of law is, that his title is complete, and he is consequently, bound to pay. The first plea of the defendant is, therefdre, bad.
The only circumstance that may be thought materially to distinguish the second and third pleas from the first, is the allegation that Henry and his wife, by virtue @f
p. 403
their claim under Nelson’s deed, keep the defendant and the heirs of Wells out of possession. But here is the same want of an averment of the lawfulness of the .claim of Henry and his wife, and for aught that appeal’s in the pleas, they may be mere wrongdoers in withholding the possession. The title of the defendant, as derived from the plaintiff, is to be deemed a lawful and valid title, for it has received the sanction of the commissioners, and the claim of Henry and his wife must be deemed frivolous and illegal, for it has never received any judicial support, and is not even alleged to be legal. Without, therefore, examining the merit of the subsequent pleadings, I am of opinion, that the first fault is in the bar, that the three pleas are equally bad, and that the plaintiff is entitled to judgment.
Spencer, J. and Yan Ness, J. concurred.
Thompson, J. not having heard the argument, gave no opinion.
Judgment for the plaintiff.