Bull v. Willard

9 Barb. 641 | N.Y. Sup. Ct. | 1850

By the Court, Welles, P. J.

The principal, if not the only question, in this case is, whether accepting the conveyance of the premises described in the contract, including the part which had been sold for taxes, by Robie, who had succeeded to Bull’s interests, and for whose benefit this action is brought, is to be deemed, under the circumstances, a full execution, on the part of the defendant, of the contract. Contracts for the sale of land are in their nature executory, and generally, the acceptance of a deed in pursuance of their stipulations is prima facie an execution of the contract, and the agreement thereby becomes void and of no further effect. Parties may nevertheless enter into covenants collateral to the deed, and cases may arise in which the deed would be regarded as only a part execution of the contract, where the provisions of the two instruments clearly manifest such to have been the intention of the parties. But the prima facie presumption of law, arising from the acceptance of the deed is, that it is an execution of the whole contract, and the rights and remedies of the parties, in relation to the contract, are to be determined by the deed, and the original agreement becomes void. (Houghtailing v. Lewis, 10 John. R. 297.) It frequently becomes a nice and difficult question to determine whether covenants contained in an agreement for the sale of land, are collateral to those providing for the execution of the deed, or are so connected with it, as to be at an end and become merged or satisfied in the execution of the deed. I have not been able to fix upon a better criterion, upon that question, than that the covenant, in order to be deemed collateral and independent, so as not to be destroyed by the execution of the deed, must not look to, or be conncected with the title, possession, quantity or emblements of the land which is the subject of the contract; and that if it does so, the execution of the deed, in pursuance of the contract, will operate as an extinguishment of it; and I am disposed to put this case upon that ground, and decide it by that rule.

It becomes important, therefore, to look at the contract in this case, or that part of it in particular, for the violation of which, the plaintiff complains. It is an agreement between the parties, by which the defendant is, upon certain payments being made, to convey to the plaintiff 282 -¡hh acres of land therein described, consisting of three lots or parcels. The contract, then, contains the following clause: “ The said party of the first part (the

defendant) further covenants and agrees with the party of the second part (the plaintiff) to redeem that part or parts of said lots which has been sold for taxes, amounting to about seventeen acres; and if redeemed by the party of the second part, the amount paid by him shall apply as so much paid on the contract; and if the same can not be redeemed, to be deducted from this contract.”

This provision was obviously inserted for the benefit of the vendee, for -the purpose of securing a good title, or rather, for the purpose of removing an incumbrance then resting upon a portion of the premises. It looked solely to the title which the vendee was to receive to the land. It provided for the plaintiff’s redeeming, in case the defendant neglected to redeem. I do not say that this left the defendant at liberty to neglect to redeem, and apply the amount the plaintiff should have to pay, as payment on the contract. I incline to think it did not; and that he was legally bound to make the redemption if it could be done; and if it could not be done, then a deduction was to be made. I mention it to show that reasonable provision was made to secure the plaintiff from loss, in cáse the defendant made default in redeeming. He neglected to avail himself of it, as I think he had a right to do; and as it did not appear that the part sold for taxes could not be redeemed, but on the contrary, we know that the law secured to the defendant, if not to the plaintiff, the right to redeem; and the title to the seventeen acres, if the comptroller’s deed gave a title, was lost by the defendant’s neglect; the plaintiff, or Robie, his assignee, ivas not bound to pay for that part of the land, or take a deed including it, unless it had been redeemed. But the bill of exceptions shows that Robie demanded and received a deed for the whole; and that the payment of the purchase money was voluntary, as well for the seventeen acres, as for the rest. When the deed was delivered, (assuming the proof offered and excluded, to have been given,) the parties to it disputed about the effect of the deed upon the contract ; Robie insisting that it was not received in full, but only in part performance of the contract, and demanding pay for the seventeen acres sold for taxes ; and the defendant insisting that the contract should be given up. I do not regard the declarations of the parties at that time of any importance upon the question whether the execution and delivery of the deed by the defendant and its acceptance by Robie, was a satisfaction or extinguishment of the previous contract. The question is not one of intention of the parties, but of strict law, as to the effect of the acceptance of the deed by Robie. It is not denied that he received it, or that there was a full, unconditional, and complete delivery. I think the proof offered, was properly excluded.

The deed contained a covenant of warranty, which would have given the plaintiff a remedy in case of eviction. I think after he accepted the deed, that was his only remedy. Whether he has lost that by buying in the seventeen acres, it is not necessary to decide.

The motion to set aside the nonsuit, should be denied.