26 Barb. 423 | N.Y. Sup. Ct. | 1857
The plaintiff agreed to purchase of the defendants the term which they believed they had in the premises described in the declaration of sale, by virtue of the assessment and sale. For this term he paid the stipulated price, believing that he should thereby acquire
The case cannot be distinguished, in principle, from that of Martin v. McCormick,, (4 Selden, 331.) In the latter case, Martin was the owner of a house and lot in the city of Hew York. The property was sold,.by order of the corporation of Hew York, for taxes chargeable upon it, and upon the sale the defendant became the purchaser. The plaintiff made an attempt to redeem the property, but was informed by the comptroller, and also by the defendant, that his redemption was too late. His money was accordingly refunded to him, and he entered into a negotiation with the purchaser, and finally took from him a conveyance of his' term, and paid him therefor $1800. At the time of the transaction, both parties believed that the time for redemption had expired, but it was subsequently ascertained that when Martin offered to redeem, the title of' the purchaser had not become absolute. Under these circumstances, he brought his action to recover back his money, on the ground that it had been paid under a mistake of fact. The action was sustained. The court say, “ the term which was the subject of the contract, contrary to the supposition of both parties, had no existence, and in all that class of cases where there is mutual error, as to the existence of the subject matter of the contract, a rescission may be had.”
It is true that in this case the declaration of sale furnished, upon its face, the evidence that the defendants, at the time they sold to the plaintiff, had no interest in the land. The description was such as to show that the assessment was illegal. But I am unable to see how this fact can avail the defendants as a ground of defense, any more than the fact that, in Hitchcock v. Giddings, the plaintiff, at the time of making his purchase, was apprised of the possibility that legal proceedings might already have been had, which-would entirely destroy the title he was purchasing. In both cases, the parties were alike ignorant of the fact that the vendor had no title. And yet, in both cases, the
Bonsteel v. Vanderbilt, (21 Barb. 26,) was decided upon the same principle. Vanderbilt had sold to Bonsteel a ticket, giving him the right to be carried from the Isthmus of Panama to San Francisco, on the steamship North America, upon her next passage. At the time of the salé, that vessel had been lost, but both parties were ignorant of the fact. Under these circumstances, it was held that the plaintiff might recover back his money, on the ground of an entire failure of the consideration for the purchase.
The same rule was applied in the case of The Canal Bank v. The Bank of Albany, (1 Hill, 287.) A draft, drawn by the Montgomery County Bank upon the Canal Bank, payable to the order of one Bentley, had been abstracted from the post office and put in circulation with the forged indorsement of the payee. It came into the hands of the Bank of Albany for collection. That Bank presented it to the Canal Bank and received payment. The forgery having been discovered, the Canal Bank brought its action to recover back the money. It was held that the forgery being unknown to both parties, the money had been paid by a mutual mistake of facts, in respect to which the parties were alike bound to inquire, and might be recovered back. Cowen, J. said: “ The defendants have
obtained the plaintiffs’ money without consideration—not as a gift, but under a mistake. For the very reason that the parties are equally innocent, the plaintiff's have the right to recover.” (See Allen v. Hammond, 11 Peters, 63.)
I cannot see why the case under consideration does not fall
I am aware of the doctrine that, upon the sale of land, the purchaser must, upon failure of title, look to his covenants, and, if he. has not had the precaution to protect himself in this way, he is without remedy. But I do not regard this as a case tif the failure of title. It is rather the failure of the subject matter of the sale. The defendants had undertaken, by means of an assignment and sale, to create in themselves a certain term or interest in certain land. Assuming that they had succeeded in doing this, they undertook to sell such term or interest to the plaintiff. It now turns out that no such term or interest was ever created. The plaintiff complains, not that his title has failed, but that the thing he purchased never had an existence. In. Martin v. McCormick, the defendant thought he had acquired an absolute title to the premises for one hundred years, and this term he undertook to sell. It turned out that there "was no such term. It was
The judgment must therefore 'be reversed, and a new trial granted, with costs to abide the event.
W. B. Wright, Harris and Gould, Justices.]