13 N.H. 167 | Superior Court of New Hampshire | 1842
It is not necessary to determine the question of variance between the allegations in the declaration, and the proofs offered in their support; nor is it necessary to consider the question of the propriety of the amendment allowed at the trial.
The question of the competency of the secondary evidence admitted at the trial to prove the existence of the incumbrance upon the estate described in the contract declared on, has not been urged in argument at this bar, but has been very properly waived. The exception taken at the trial cannot legally be sustained. Application was made to Sawyer, who was shown to possess the mortgage and notes given by George Little to Moses Little, constituting the incumbrance in question, and which said Moses Little had assigned to him; but he refused to annex the original mortgage or notes to his deposition, as the defendants desired and requested him to do. Sawyer resided at Boston, beyond the jurisdiction of the courts in this state, and of course could not be compelled to produce the original notes and mortgage in evidence here. The defendants, then, when they requested Sawyer to annex the original notes and mortgage to his deposition, did all that was in their power to have the same present at the trial, and to give the same in evidence in this cause. They in fact did all that was by law required of them, in order to lay the foundation for the introduction of the secondary evidence, it was their right, then, to make the proof of the fact in question by secondary evidence.
The character of the secondary evidence offered was not
Regarding the fact of the existence of the incumbrance upon the land as being made out upon competent proof, the main question in the case, and that which involves the whole merits of the controversy, remains to be settled.
Did the plaintiff, on the first day of January, 1840, so far perform the covenant contained in the contract, on his part, as to entitle him to demand a performance by the defendants of the stipulations of the contract, on their part to be performed ? The plaintiff, as a performance of the contract on his part, tendered a deed to the defendants, in form sufficient, and in that particular in compliance, with the requirements of the covenant. No question is made upon the form of the deed, or the manner of its execution. But the estate was encumbered at the time of the tender.
The proper and material enquiry, then, is, whether the defendants contracted for a deed only, with sufficient covenants of seizin, right to convey, against incumbrances, and of warranty, or for a deed, with such covenants, and at the same time conveying to them a perfect title to the estate ? Did the plaintiff covenant to convey a good title, and sufficiently assure it, or only to execute a deed, good and sufficient in form, with covenants of warranty and assurance, but conveying no title ; or, if any, an imperfect one ?
In determining this question, wo are to be guided by the language of the contract. The whole question depends upon a sound construction of the language of the instrument. From it we are to ascertain the intention of the parties, so far as we may, and by our decision to carry out that intention.
As the case finds, the plaintiff “ agreed, on or before the first day of January then next, (1840,) by a good and suili
Had it not been for the apparent confidence of the counsel who argued this cause on the part of the plaintiff, in the correctness of the position assumed and attempted to be maintained by him, it would never have occurred to us that any reasonable doubt existed as to the true construction of the covenant, or as to the duty imposed upon the plaintiff, by the terms of the contract under consideration. The language employed was, that the plaintiff agreed “ to grant, convey, deed, assure, &c., a certain tract of land,” and it was to be by a deed executed according to law. Here is a contract, then, using terms the broadest, and most comprehensive and direct, for a conveyance of a tract of land, and for an assurance of the title, by the execution of a deed in the most common form of conveyances in use at the present time.
If the form of the deed in which the conveyance was to have been made had not been stipulated for in the contract, we see not how it could have been considered open to doubt that a good title was the subject matter of the contract, and that the covenant of the plaintiff was one for the conveyance of such a title to the land. And we are of opinion that that circumstance is not of. sufficient weight to control the otherwise obvious meaning of the instrument.
It is common and reasonable, that one contracting to sell and convey land should enter into stipulations in regard to the form of the deed; and certainly the fact that a person should so do, would not naturally or properly lead to the conclusion that it was a deed only in that form, which he contracted to give; while, at the same time, in the broadest and most explicit terms, and expressly, the contract is “to grant and convey the land.” To grant and convey land means something more than to execute a deed, in legal form, of land of which one has either no title at all, or an imperfect one.
In Judson vs. Wass, 11 Johns. 584, it was decided, that a contract to execute a deed with covenant of warranty, was not merely a contract that the grantor should execute a deed containing such a covenant, hut was a contract that he had the power, and would give a deed conveying an indefeasible title.
So, also, in Everson vs. Kirtland, 4 Paige's R. 628, it was holden that “ a covenant to cause to be conveyed, by a good and sufficient warrantee deed, is not complied with by the mere giving of a warrantee deed, where the grantor has no title to the land, or where his title is imperfect. It must be a deed good and sufficient, both in form and substance, to convey a title to the land.”
These authorities we think go very far to support the view which we have taken of the question under consideration.
The opinion of the court, therefore, is, that the verdict must be set aside, and that there must be
Judgment for the defendants.