Connelly v. Pierce — 7 Wend. 129

Majority

p. 129

Connelly and others vs. Pierce.

Headnote

A vendor of land, who has covenanted to convey by a day certain, is not in default until the party who is to receive the conveyance, being entitled thereto, has demanded it, and having waited a reasonable time to have it drawn and executed, has made a second demand. The purchaser may, it seems, avoid the necessity of a second demand, by tendering on the first demand a deed prepared for execution.

A vendor, bound to give a deed by a day certain, must be at the expense of having it drawn, but is not obliged to have it prepared until it is demanded. A plea by a vendor that he was not requested to convey, and that he did not refuse, is bad for duplicity on special demurrer.

Demurrer to plea. The plaintiffs declared in covenant on a contract bearing date 30th May, 1827, whereby, after reciting that the defendant on the 10th day of April, then last past had purchased at a sheriff’s sale, by virtue of executions against a certain person, 88 acres of land; and that in consideration of $320 paid to him by the plaintiffs, he had bargained and sold to them 40 acres off of the north part of the premises purchased by him, the defendant covenanted and agreed that he would convey to the plaintiffs, by a deed of warranty, the said 40 acres, at the expiration of 15 months from the time of the sheriff’s sale, provided the title to the

p. 130

premises should be vested in him by virtue of the sheriff's deed. The plaintiffs averred that on the 10th day of July, 1828, the title to the premises purchased by the defendant was vested in him by virtue of such deed, but that he refused to convey to them, although requested so to do. The defendant interposed several pleas, and among others that he was ■not requested by the plaintiffs, on the 10th July, 1828, or at any other time afterwards, to convey to them the 40 acres; nor did he on that day, or at any time afterwards, refuse to convey the same. To this plea the plaintiff demurred, and assigned for cause of demurrur, that the plea was double: in alleging that the defendant was not requested, and that he did not refuse. The defendant joined in demurrer.

W. Brown, for plaintiffs.

P. Bronson, for defendant.

By the Court,

The rule in pleading is, that a plea may contain as many facts as are necessary to malee out one point, or one defence. The defence relied on by the plea demurred to is that the defendant, is not in default by refusal to give a deed on demand. It was not necessary to his defence, to have negatived both facts; for if the deed' had never been demanded of him, that alone is an answer to "the plaintiff’s declaration; and if, upon demand, the defendant did not refuse, but offered to convey, that also is an answer. The two facts are closely connected, and the defend- - ant could not be compelled to admit either fact; but -to deny both, it must be done in separate pleas. Either allegation in the plea being a good defence to the action, that settles the question as to the point of form against the defendant. He cannot plead two defences in the same plea; he may plead as many defences as he has, but each defence must be stated in a separate plea. In Strong v. Smith, 3 Caines, 160, the Court held there was no duplicity in the plea, because the point of defence being the defendant’s right to enter the locus, 'in quo, he had shewn that right by setting forth two facts

p. 131

both necessary to establish the right, to wit, seisin in the trusfees of the town, and their demise to him. In Tucker v. Ladd, 7 Cowen, 450, the defence was a set off, and to shew the defendant’s right to the set off it became necessary to allege that the plaintiffs were trustees for a third person, and that the defendants had a judgment against such person. Both allegations were necessary to make out the point of defence. But in Service v. Heermance, 2 Johns. R. 96, where, to a plea of discharge, under the insolvent act, the plaintiff replied five several acts, each of which was sufficient to avoid the discharge, the court held the replication bad, for duplicity. And a similar decision was made in Cooper v. Heermance, 3 Johns. R. 315. In this case the defendant has coupled in the same plea two facts, each of which, taken separately, although there is an apparent connection between them, is a sufficient defence to the plaintiffs’ action. The plea is therefore faulty in point of form; and it is so because the several matters which it contains are good defences in law.

On the merits it is impossible to distinguish this case from Fuller v. Hubbard, 6 Cowen, 2, and Hacket v. Huson, 3 Wendell, 250. In the latter case, particularly, the consideration had been paid, as in this case, and the conveyance was to be executed by a particular day ; but the same rule was held applicable, which had been previously applied, when the payment of the consideration and the giving of'the deed were to be simultaneous acts. It may be considered the rule of this court, that when a party convenants to convey, he is not in default until the party who is to receive the conveyance, being entitled thereto, has demanded it, and having waited a reasonable time to have it drawn and executed, has made a second demand. In England the party entitled to the deed is bound to have it drawn and presented for execution ; we have not gone so far; the party who is to give a deed, certainly should have it drawn at his own expense; but upon such a convenant as that declared on this case, the convenantor is not bound to prepare the conveyance until it is demanded when it is his duty to execute and perfect the conveyance with all reasonable despatch, and hold it ready for delivery when called for.

p. 132

The purchaser, no doubt, may prepare the deed and tender it for execution, and then but one demand is necessary.

The plaintiff is entitled to judgment on the demurrer, with leave to the defendant to amend, on payment of costs.