Hackett v. Huson

3 Wend. 249 | N.Y. Sup. Ct. | 1829

By the Court,

Maxcy, J.

This is an action on a covenant to convey a certain piece of land situated in Wayne county. It is quite uncertain, from the casé, what was the decision of the judge at the circuit. It is probably stated to be the reverse of what it really was. Take the whole case together, it would seem that the judge ruled that where a plaintiff has a covenant from the defendant to convey, he must prepare and tender a deed for the defendant to execute. This is the English rule, but it has not yet been adopted in this state. To put the vendor of real estate in default, it is necessary that the vendee should demand a deed, wait a reasonable time for the defendant to get it drawn, and then again present himself to receive it. (Fuller v. Hubbard, 6 Cowen, 1.) This was not done by the plaintiff in this case, nor did any thing take place between the parties to render the rule inapplicable, or to dispense with its observance. There was a deed tendered by the defendants, but it is said that it was not such a deed as the agreement contemplated. The case states that copies of the deeds were to be annexed to it. That has not been done, and of course wé cannot say "whether the deed was or was not sufficient. The only objection made to it was, that a sufficient consideration was not expressed in it. By the agreement, the defendants for" a valuable consideration, (without specifying it,) became bound to execute and deliver a good and sufficient warrantee deed of certain premises. The consideration expressed in the deed tendered by the defendants was #25; and the plaintiff refused it because it was not for the full value of the land. This was the only objection made to it when it was tendered. On the trial it was shewn that the defendant Youngs had a wife, and she was not a party to the deed; but no objection was made jo it on that account. It appeared that the title to the premises came from Connecticut to Huson; and though Youngs joined in the deed, he had no title to the land. His wife could not therefore have a claim for dower. There is some doubt whether the objection to the deed made by the plaintiff was well founded. The agreement does not disclose any thing by which we can infer that the consideration for the deed was more than the sum expressed in it, or that the defendants were bound to put in it the full value of the land as the consideration. At all events, if the plaintiff did not consider that the defendants tendered a deed pursuant to the agreement, he should have prepared one that did conform to it, and presented it to them to be executed ; and if they had refused to do it, they would then have been in default.

Motion to set aside nonsuit denied.