5 Cow. 509 | N.Y. Sup. Ct. | 1826
The plaintiff declared on a covenant, 7 that on the payment of the sums of money, and fulfilment of the agreements to be performed by the defendant, he, with Storrs, would convey a title in fee simple to all that certain piece or parcel of land situated in the town of Hounsfield, <fcc., being all that part of lot 44, owned by them, that lay south of the Watertown road; bounded easterly, westerly and southerly, by the lines of the lot; and estimated to contain about 300 acres. The defendant covenanted to pay five dollars for every acre of the premises ; one sixth at the expiration of one year, and the residue in five equal annual instalments. The articles were dated November 25th, 1816.
The pleas were, 1. Non est factum: 2. That the articles were obtained by fraud.
It appeared at the trial, that at the time of making the con
The next question that arises is, whether the covenants are not independent; and if so, whether it is competent for the defendant, in this action, to object that the vendors were not seised of a part of the land they covenanted to convey.
Where the covenants are dependant, the conveyance of the land, and the payment of the money must be simultaneous. In this case, it appears to me they were mutual and
My conclusion is, that the defendant is liable in this action ; although it be conceded that the plaintiff cannot give a good title to all that part of the lot on the south side of the Watertown road.
If, hoAvever, I am mistaken on this point, then the question arises as to the quantity of land covenanted to be con
Neither party knew the number of acres. It was provided that a further survey be made. Whether the contents were more or less than 300 acres, cannot affect the question.
The siuwey to ascertain the number of acres, was not necessary to give the plaintiff a right of action. It was only essential to ascertain with accuracy the amount of damages.
The result of my opinion is, that the motion for a new trial be denied; on the ground that the covenants were independent. The defendant failed altogether on the issue of fraud.
New trial denied.
Vid. the next preceding case.