Gelston v. Burr, 11 Johns. 482

Gelston v. Burr

11 Johns. 482 | N.Y. Sup. Ct. | 1814

Per Curiam.

The replication to the first plea docs not traverse the facts as stated. It neither affirms nor denies 5 hat after the execution of the deed from the defendant to the plaintiff, the plaintiff was seised-in his demesne as of fee of und in the lots mcntio$md. It only tenders an issue on the *485fact whether the plaintiff did defeat or bar his estate by deed mnder his hand and seal. The plea, however, is deficient; the deed by which it is alleged that the plaintiff defeated his title is insufficiently set forth; although it is not incumbent on the defendant to give oyer of this deed, yet it ought to have been so pleaded as to show the nature of the instrument, and the parties to it, whereby its extent and operation might fully appear, and the intent and meaning of the plea be plainly understood, so as to enable the defendant to reply to it with precision. An omission so essential renders it bad, for want of sufficient certainty; and the first fault having been committed by the defendant, according to the rules of pleading, the plaintiff is entitled to judgment.

The facts disclosed by the seventh plea (admitting them to be true) do not show that the defendant was seised of and in the twenty lots according to the covenant contained in the conveyance from the defendant to the plaintiff. It is stated that the premises had been mortgaged to the defendant by one Timothy Green, to secure the payment of 4,000 dollars in four equal annual instalments, with interest, at 8 per cent, per annum, to be paid annually on the said sum, or such part thereof as should remain unpaid; that default had been made by T. Green m those payments, whereby the estate of the defendant became absolute in the premises, &c.

The forfeiture of this mortgage, and re-entry of the defendant did not make it an absolute conveyance of the premises to him. The equity of redemption still remained in Green, This plea, consequently, is wholly defective by not showing a performance of the covenant op the part of the defendant. It is, therefore, unnecessary to examine the replication to which the defendant has demurred, because, consonant to the rules of pleading before mentioned, the plaintiff is entitled to judgment,

Judgment for the plaintiff