26 N.Y.S. 48 | New York Court of Common Pleas | 1893
Plaintiff’s testatrix entered into a contract with defendant for the purchase by her of certain lands on Bradhurst avenue in the city of New York. This contract, among other things, provided that “the vendor shall give and the vendee shall accept a title such as the Title Guarantee and Trust Company will approve.” At the time appointed for the delivery of the deed of conveyance in exchange for the payment of the balance of the purchase money the title company refused to approve the title, and the vendee thereupon declined to accept it, and to pay the purchase money. On the trial of this action, which was brought to recover the sum paid on account of the purchase money at the time of the making of the contract, with the expenses incurred by the vendee in the investigation of the vendor’s title, the above facts appeared, as did also that the title company refused to approve the title owing to the opinion of its counsel that the ownership of part of the lands mentioned in the contract, which extended into a former swamp, was in doubt; and that, because of an alleged irregularity in a certain action in the supreme court, wherein Lydia Beebe, Louisa Dekay Townsend, and others were plaintiffs, and Andrew L. Hamersley and others were defendants, which was brought for the partition of lands of which the lands described in the contract were a part, the interest of a former cotenant, Charles Van Eensselaer Townsend, was still out-' standing in him. No evidence of any facts of which the doubtful character of the title to the swamp lands was predicable in the opinion of the title company’s counsel was adduced. Concerning counsel’s other objection, however, the record of this appeal shows
In passing, we may say that upon the evidence we concur in the views of the trial judge that the objections raised by the title company’s counsel did not point out any defect in the vendor’s title. It is not necessary to discuss them, however, for, be that as it may, it was, in our opinion, error to dismiss the complaint. “Expressiounius est exclusio alterius;” “expressum facit cessare tactum.”" Broom, Leg. Max. p. 650. Hence, if the contracting parties have expressly provided for the same subject-matter, that which the law would otherwise have implied does not prevail. 1 Chitty, Cont. p. 89. Again, it is a fundamental rule of construction that effect must be given to every part of the contract. 2 Pars. Cont. p. 505. If, therefore, the language of a particular covenant is fairly open to a construction that the parties intended to create a right, and to impose a correlative obligation, which would not have been extant without it, it will be error to assume that the covenant is cumulative respecting an implied right and its corresponding obligation, and so redundant. In every contract for the purchase and sale of real property a covenant on the part of the vendor to tender a good title —that is to say, one free from valid legal objection—will be implied, if the vendee has not agreed to be content with another or different one, (1 Sugd. Vend. p. 16; Her. Real Estate, [3d Ed.] p. 482;) and conforming, therefore, to the maxims and rule above stated, it must be assumed that the parties to the contract, for the breach of which this action was brought, meant just what they said when the vendor agreed to give, and the vendee agreed to accept, a title such as the title company would approve. Obviously, to hold that this meant no more than that the vendor should tender a good title,—one free from valid legal objection,—is, in effect, to condemn the covenant as.
The opinion of Judge Brown in Vought v. Williams, 120 N. Y. 253,
We may add that if the party who has covenanted to procure the approval of a third person as a condition precedent to his right of performance by the other of the contracting parties is prevented from procuring it by the act of the latter, in that event the former will be relieved from performance in that respect, since, under such circumstances, the latter will be deemed to have waived it. Ho one will be permitted to urge his own wrong to the detriment of another. But that plaintiff did in any manner hinder defendant