Clark v. Redman

| Ind. | Nov 14, 1825

Blackford, J.

This was an action of covenant on two bonds, executed by Clark, Hoggatt, and Kitchell, conditioned for making a lawful title to Redman for certain lots of ground, upon his payment of the purchase-money. The defendants pleaded, 1st, non-payment of the purchase-money; 2dly, cove-pants performed^ 3dly, tender of title. Issues were joined up on these pleas, and the jury gave a verdict for the plaintiff Motion for a new trial overruled, and judgment rendered upon the verdict. The defendants institute this writ of error.

To support his action, the plaintiff relied upon the bonds and payment of the purchase-money. The execution of the bonds is admitted by the pleadings. With respect to the payment of the purchase-money in the first issue mentioned, the evidence upon the record, though somewhat obscure, is such as to prohibit our interference, on that account, with the verdict of the jury. Upon the second issue no testimony was introduced. In support of the third plea, the defendants proved the tender, after a declaration filed, of a warranty deed executed by Hoggatt, one of the obligors, and his wife. This deed the plaintiff refused to accept. They also proved, that previously to the execution of Hoggatt’’s deed tendered to Redman, the other obligors, Clark and Kitchell, had each given warranty deeds to Hoggatt for an undivided third of the premises. The cause went to the jury, with an opinion of the Court, that if the tender was not made till after the filing of the declaration, which they considered a commencement of the suit, it was not sufficient. In New-York it has been decided, that the impetration of the writ as to every material purpose, is the commencement of the suit. Carpenter v. Butterfield, 3 Johns. Ca. 146. That we take to be the law here, which we do not consider changed by our statute, authorizing the filing of declarations before the writs issue. To maintain the plea of tender, in a case like the present, it must be shown that the covenants offered to be performed, were co-extensive with those contained in the obligation. Here was a bond by Clark, Hoggatt, and Kitchell, for making a lawful title for the premises to Redman; by which bond, these three obligors were bound for a good and perfect title, with a general warranty deed, containing the usual covenants, to be executed by them all with their wives. The deed actually tendered, by way of compliance with this contract, was one executed by Hoggatt and bis wife only. Redman, in our opinion, was justifiable in refusing it. He had a right to a good and perfect title, and to be secured in it by the covenants of Clark and Kitchell as well as of Hoggatt. This point is settled in Lawrence v. Parker, 1 Mass. 191 ⁽¹⁾. The case was attempted tobe made out in evidence, by showing deeds made by Clark for one-third, and by Kitchell For another third, of the premises, to Hoggatt. This will not do. Whether the covenants of Clark and Kitchell to Hoggatt, would have passed to Redman by the general warranty deed of Hoggatt, we shall not stop now to inquire ⁽²⁾. Placing the case as to this question on the most favourable ground for the defendants, and supposing that all the covenants of Clark and Kitchell would have passed to Redman by Hoggatt's conveyance, still they cannot prevail. One objection is, these deeds of Clark and Kitchell do not appear, from the facts contained in the certificates of acknowledgment, to have been acknowledged by their wives in pursuance of the statute. To effect a relinquishment of dower, the acknowledgment of the wife must appear to have been made separately and apart from her husband. Stat. 1823, p. 334 ⁽³⁾. Another objection is, Clark's warranty is only of one-third of the premises, and Kitchell's only of another third. So that all Redman could have possibly had, would have been the covenants of Clark for one-third, the covenants of Kitchell for another third, and those of Hoggatt for the whole. This was not the security for which the plaintiff contracted. It was by no means the warranty security of a joint deed, with the usual covenants, executed by all three of the obligors. The tender of performance therefore was not co-extensive with the undertaking of the defendants, and was no defence to the action upon their bond brought by the plaintiff

We conclude, that as there was evidence sufficient at the trial of this cause, from which the jury might infer payment of the purchase-money by Redman, and a consequent duty devolving upon Clark, Hoggatt, and Kitchell, to execute a lawful title to him for the premises, secured by their joint covenants ⁽⁴⁾, — and no performance of the contract or tender thereof by the obligors, equally extensive with their undertaking, being proved or offered to be proved, — the verdict for the plaintiff was right, and the motion of the defendants for a new trial correctly overruled. It is true, the jury might have mistaken the law, as to the time when a tender should be made, in consequence of the misdirection of the Court heretofore noticed; but that circumstance does not affect the case. The deed itself which was tendered not being sufficient, it is quite immaterial whether it was tendered before or after the commencement of the suit.

Per Curiam.

The judgment is affirmed, with one per cent, damages and costs.

Moore and Payne, for the plaintiffs. JVelsorl, for the defendant.

(1) Leonard v. Bates, ante, p. 172, 174.

(2) Vide note to Smith v. M’Campbell, ante, p. 102.

(3) In England, the interest Of a feme covert in real estate can only be core?' veyed by means of a fine or a recovery; and it is essential to the validity of these, that the feme be privately examined. The following is the language of a distinguished lawyer of that country upon this subject: — “A man and his wife cannot convey an estate of the wife without a fine or a recovery, neither can the wife be barred of her dower without a similar proceeding. The reason is, the influence her husband may possess over her mind; and consequently, a judge takes the woman in these cases into a private room, to examine her, first, as to whether she acts from fear, and then, when that is out of the case, whether she is influenced by favour and affection: and he also examihes her as to any temporary increase of affection from any passing cause; and then, when she has purged herself of all temporary increase of affection, of all fear, and all love, she is allowed to give her consent. I would propose, in place of all this inquiry, not always very delicate, nor ever very satisfactory, to let husband and wife join in a common conveyance, with the consent of a guardian to be appointed, or of the next male relative of the wife, who is not related to the husband, and not interested in either the succession or' the conveyance." Brougham on the State of the Law, p, 64.

The modes of conveyance by fine and recovery are not usual in the United States. By the statute law in most of the states, the wife joins with her husband in the execution of a deed to convey her estate or bar her dower; acknowledging on a private examination apart from her husband,- that she had freely executed it. In some.of the states the privy examination and acknowledgment are taken in Court, in others before a judge, justice of the peace, &c. They may be proved by the record, or by the certificate of the officer, but not by parol testimony. Rhea et al. v. Rhenner, 1 Peter's, 105, 109. — Elliott et al. v. Peirsol et al. ib. 328, 338. — 1 Amer. Jurist, 73, 74. There are a few states in which the privy examination of the wife is not required. 1 Amer. Jur. supra.

(4) Vide note to Huntington v. Colman, ante, p. 349.