We think the judgment of the trial court erroneous in having required the defendant to convey the lands by a "warranty deed." The contract of the parties was that the plaintiff should "have the privilege of buying the farm" of the defendant for $3,000, and it contained no provision for any covenants, or as to the form of the deed, upon the privilege being availed of. It was early settled in this state that in such cases the vendor was only bound to deliver a deed sufficient in law to pass the title. (Van Eps v Mayor, etc., of Schenectady, 12 Johns. 442;Ketchum v. Evertson, 13 ib. 359; Gazley v. Price, 16 ib. 267.)
As this farm was found to have been free from any liens or incumbrances at the time of the contract, it was proper to direct the defendant to convey it free from any such.
The judgment should be modified by striking therefrom the word "warranty," and as so modified should be affirmed, without costs in this court to either party.
CULLEN, Ch. J., GRAY, VANN, WERNER, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur.
Judgment accordingly. *Page 164