36 Ill. 65 | Ill. | 1864
delivered the opinion of the Court:
It is a strong presumption that the note was given for the land, and in the absence of any proof to rebut it, the presumption must prevail.
The contract with the plaintiffs was, that on payment of the notes with the interest, -they would execute and deliver to defendant a good and sufficient deed of general warranty for the premises, and the defendant was to take immediate possession of the same.
It is in proof that before suit brought, on the very day of its commencement, plaintiffs presented the note to defendant for payment, and tendered him a warranty deed in the usual form, dated December 27th, 1856, for the premises described in the contract, executed by them on the first day of July, 1862. The defendant replied to the demand and tender, that he had not the money and was unable to pay the note.
It is in proof that on the first day of July, 1862, the plaintiffs were married men and had been for some time previous.
The dower right of their wives was not released by this deed. The question then is, did this furnish a sufficient excuse for the non-payment of the note ?
We think not. The covenant was to make a general warranty deed, and nothing more. Such a deed was tendered, and the party was bound to accept it Even if the covenant was to make such a deed free and clear of all incumbrances, it has been said by a respectable court, that a possibility of dower is not, within the sense of such a covenant, an incumbrance, for that means a settled, fixed incumbrance. Per Stoby, J., in Powell and Wife v. Monson and Brimfield Manufacturing Co., 3 Mason, 355.
As the plaintiffs undertook to make a deed with a covenant of general warranty only, it could not be broken until there was an actual eviction, or something equivalent to an eviction. Beebe v. Swartout, 3 Gilm. 179. Such a covenant is usually treated as synonymous with a covenant for quiet epjoyment, since the same concurrence of circumstances is necessary to their breach; they equally possess the capacity of running with the land, and the rules as to the measure of damages are the same as to-both. Rawle on Cov. 196.
The covenant as expressed in the obligation, of the plaintiffs amounts to no more than an engagement that it should bar the covenantors and them heirs from ever claiming the land, and that they and their heirs, should undertake to - defend it when ■assailed--by a paramount title.- We cannot find, in the books any authority for. the suggestion, that a covenant of general warranty, by itself, includes a covenant against incumbrances, admitting an inchoate right of dower to..be an incumbrance.
All the cases cited. by appellant, are ■ cases in which the covenant against incumbrances was inserted in .the deed, and can have no application to this case. 1
When the deed was tendered to defendant he -did not then object that it contained no release of dower. Had he made that the objection, it might have been removed at once, by procuring such release. .
Making no objection to the deed on the ground now -taken, would not perhaps preclude him, but being made, we are of opinion, the covenant of the plaintiffs was performed by them, and the defendant should receive the deed and pay the note. If, hereafter, the wives of plaintiffs should become widows, -and. claim and recover their dower in a-mode -by which the defendant maybe injured,he will be able to obtain recompense on the covenants in his deed. - It would be unjust to- allow him to defeat the payment, pf the -note, on this bare possibility, and at the same time retain the-possession and enjoyment of the land. -
We see no merits in -the defense, and accordingly affirm the judgment
Judgment affirmed.