20 N.J.L. 513 | N.J. | 1845
Various causes of demurrer have been assigned in this case, which will be examined and considered in their order. In the first place it is alleged, that although the
The second plea goes to the whole declaration, and says, actio •non, because on, &e., the day for delivering the deed, the said farm was not free from incumbrance, but was subject to the dower right of the widow of Barzillai Wright, of and in the farm, to wit, at, <fcc., and concludes with a verification, but adds no prayer for judgment.
The demurrer to this plea assigns the omission of a prayer for judgment, for cause of demurrer; and I do not see but it must prevail. It is true when a prayer is added, the court will restrict or enlarge it, and give such judgment, as appears upon the whole record to be proper; Le Bret v. Papillon, 4 East. 502; Powell v. Fullerton, 2 Bos. and Pul. 420; 2 Saund. 210 d in note. But nevertheless a plea concluding with a verification, is not complete without a prayer for judgment, and is bad upon special demurrer for that cause.
If our decision upon this point would settle the cause, we might stop here and overrule the plea on this* ground alone. But it involves another matter, which is more important, and upon which it is our duty to express an opinion. The principal and important question, raised by this demurrer, is, whether the fact of an existing dower right on the premises, at the day fixed for delivering the deed, if well pleaded, is a good defence to the action. I must confess I cannot see why it is not. Surely the defendant was- not bound to accept and pay for a title he knew to be imperfect, or incumbered, and look to his covenants for indemnity. A court of equity would not, under such an agreement as this, decree a specific performance, with such an incumbrance on the estate ; and why should a court of law permit the plaintiff to recover damages for not accepting and paying for a title, which
The plaintiff however has not assigned, as cause of demurrer, the imperfect and general manner in which this matter has been pleaded ; and hence the question arises, whether the plea is bad on general demurrer. Upon consideration, I am inclined to think it is. It was argued on the part of the plaintiff, that the defendant ought to have averred a readiness to accept, but for the incumbrance ; that if. the defendant had interposed that difficulty at the time, the plaintiff might have removed it; and then a court of equity would have decreed a specific performance. But I think the defendant might have pleaded a defect of title, even if it had not come to his knowledge until after he had refused to accept the deed, or even after action brought. It is, in my mind, however, a more substantial objection to the plea that the matter is so pleaded, as not to be capable of being traversed or denied, so as to form an issue. The plea is, that the farm was subject to “ the dower right of the widow of Barzilla Wright.” This is entirely too general and uncertain to admit of a direct answer. Of whose estate was she entitled to be endowed ? Was it of the estate of Barzillai Wright, or in virtue of the estate and seizin of
The 3d plea, which is also to the whole declaration, is, that at the time of making the covenant, “ the plaintiff had nothing in the farm, whereby he could convey to the defendant a good title to the same, according to the tenor of the agreement.”
This plea is clearly no answer to the declaration. It is an every day occurrence' for one having an imperfect title, or no legal title at all, to covenant for the sale and conveyance of premises at a future day. In equity, a vendor, not having a good title at the time of a contract, will have a specific performance, if he procure one before the report. Mortlock v. Buller, 10 Ves. 315. Hepburn v. Dunlop & Co., 1 Wheat. 179.
The 4th plea is actio non, because the plaintiff was not ready and willing to make nor could he make a good title; and concludes to the country.
The causes of demurrer assigned to this plea, are, 1st, that it is double. 2dly. It tenders two distinct issues. 3dly. That it tenders an immaterial issue; and lastly that it concludes to the country.
If the averment in this plea, that the plaintiff could not make a good title, is immaterial, and not traversable, then the plea will be free from duplicity, and amount to nothing more, than a traverse of the material averment in the plaintiff’s declaration of his readiness and willingness to deliver the deed. The averment that plaintiff could not make a good title, in such case, would be considered as mere surplusage; and of course will not vitiate the material part of the plea. Gould’s pl. ch. 8. Part 1, sec. 16. Chit. pl. 232. But anything in itself material, though ill-pleaded, in connection with other material and issuable matter, renders the pleading double. Ib. and Bac. Abr. Pleas, &c. K. 2
Now, the inability of the plaintiff to make a good title if well pleaded, would be a material and traversable matter; and would seem therefore to render the plea double, according to the rule
The 7th plea is actio wow, because “the house of William Cook, was not the place designated and agreed upon by and between the parties, in the articles of agreement; and concludes to the country.”
If the words “ in the articles of agreement ” had been omitted, and if the plea had been restricted to the first count, it would necessarily have called in question the vaildity of that count. As it is, the court are not called upon to express any opinion, on the sufficiency of that part of the declaration. But the plea must be overruled for two reasons: 1st, because it goes to the whole declaration, and however faulty the first count may be, it is no answer to any thing contained in the second count; and 2dly, because it denies a matter not alleged in the declaration, and yet concludes to the country.
The 8th plea is, that the plaintiff did not go to the house of the defendant, and make diligent search, &c.; and concludes to the country.
This plea cannot be sustained. It is uncertain and equivocal. The averment in the declaration is, that the plaintiff went to the dwelling house and usual place'of abode, of the defendant; the plea fails to negative this averment, and in fact evades it, by saying that the plaintiff did not go to the house of the defendant. This is no answer to the count, and must therefore be overruled.
The result is, that all the pleas demurred to are .bad, and judgment must be given for the plaintiff.
This is an action of debt, brought on a written agreement for the sale of a farm, to recover a penalty from the defendant for his not receiving a deed and completing the purchase ; and the questions before the court arise on demurrers to several of the defendant's pleas.
The second plea sets up, that at “ the time mentioned in the said articles of agreement, for the delivery of said deed, the said farm was not free from incumbrance, but was subject to the dower right of” &c. In Conover v. Tindall, 1 Spencer 214, this court decided, that, by the terms of this same agreement, the plaintiff was bound to give to the defendant not merely “ a good and sufficient deed,” but a good and sufficient title, and this principle is further sustained in Carpenter v. Bailey, 17 Wendell 244 — where, in an action by the vendor to recover part of the consideration money, a plea of want of title, the agreement being for “ a good and sufficient warrantee deed,” was held by the court to be good. If then, this agreement for u a good and sufficient deed,” means a good title, of course the defendant may plead and show in evidence a defective title, whether he was present or absent at the tender; and an averment of readiness to receive a title, but for this objection, is not necessary; for the plaintiff must make such a tender as he can sustain by proof, to make a good title. Absence of a party may waive a personal tender, 25 Wend. 405, 2 Hill 351, but nota defective title.
But this plea, though good in substance, is bad in form; it contains no prayer for judgment. In a plea in bar, the court will sometimes aid a defective prayer, though not in a plea in abatement, but judgment will, not be given without a prayer for it, if the objection be properly taken. Saund. R. 97. 1 Chit. Pl. 445, 446 and 539. 3 Term R. 185.
The fourth plea alleges that the plaintiff at the time for that purpose set ibrth in the declaration, was not ready and willing to make, nor could he make to the defendant a good title for the said farm, according to the tenor and effect of the agreement as stated in the declaration; and concludes to the country.
The objections raised are that the plea is double, raises two issues, and that the subject matter thereof is immaterial. The declaration states, that the plaintiff executed the deed according to the agreement, and by way of excuse for not tendering th-e
The seventh plea sets forth, that the house of William Cook was not the place agreed on for the delivery of the deed. This plea is bad ; it being to both counts, though the averment of a tender, at Cook’s house, is only made in one count.
The eighth plea is bad, because it assumes to answer what it does not do fully. It does not confess, or deny and traverse the whole matter pleaded, see 1 Chit. Pl. 507. The second count alleges, that the plaintiff, for the purpose of tendering a deed to the defendant, went to his “ dwelling house and usual place of abode ” and made diligent search and inquiry ; but the plea says, that the plaintiff did not go to the “ house of the said defendant ” —leaving out the words “ dwelling and usual place of abode,” these being the material part of the count, which the plea is designed to answer, as the tender must be made at such a place as is designated in the count, not simply at such a place as the plea designates.
IÍevius, J., concurred.
Judgment for the plaintiff.
Cited in Stryker v. Vanderbilt, 3 Dutch. 72; Brehen v. O’Donnell, 5 Vr. 409; Lounsbery v. Locander, 10 C. E. Gr. 557.