17 N.Y.S. 13 | N.Y. Sup. Ct. | 1891
This action was brought by the plaintiffs, as vendees of a piece of real estate in this city known as “105 Bleecker Street,” against the defendants as vendors, for the specific performance of a contract of purchase, and, in case of inability on the defendants’ part to deliver a proper deed, for the return of the sum paid on account of the purchase money, together with the expenses of examining the title. By the terms of the contract, which was under seal, the defendants agreed to give the plaintiffs “an executor’s deed, with covenant against their acts, for the conveying and assuring to them [the plaintiffs] the fee-simple of the said premises free from all incumbrance, except leases now existing, which expire the first day of May, 1891, and the taxes on said premises for the year eighteen .hundred and ninety.” Upon the day when the contract was to be performed the parties met, and the defendants tendered a deed which contained no covenant against incumbrances other than those of the grantors’ creation. The plaintiffs declined to receive the deed, orto pay the balance of the purchase price, upon the ground that the property was subject to an incumbrance in the nature of a restriction against building upon 10 feet of the frontage of the lot. That this restriction existed under a deed made as far back as the year 1829 is conceded, and that it amounted in law to an incumbrance is entirely well Settled. Roberts v. Levy, 3 Abb. Pr. (N. S.) 311; Huyck v. Andrews, 113 N. Y., bottom of page 86;
We are referred to certain cases which hold that trifling incumbrances upon the title, which were known to the vendee-at the time he contracted to purchase, will not prevent a decree of specific performance. Ten Broeck v. Livingston, 1 Johns. Ch. 357; Winne v. Reynolds, 6 Paige, 407. In two respects these cases are plainly distinguishable from the present. In the first place, the incumbrances there were trifling. In Ten Broeck v. Livingston the proportion of the quit-rent which would have fallen on the plaintiff’s farm, if it wras then to be collected, would have been but 54 cents a year. It was, as Chancellor Kent said, nothing more than a recognition of manorial seigniory, which in early days was deemed a matter of some importance. There was no evidence that this rent had been demanded or paid for 60 years prior to the making of the contract. It was upon these facts that the chancellor held that the quit-rent was never within the contemplation of the parties as an obstacle to title. In Winne v. Reynolds there was a pre-emptian right of purchase, which Chancellor Walworth treated as a partial restriction upon the power of alienation. “It is,” said the chancellor, “a remnant of feudal vassalage, which a freeman would not be willing to have his land subjected to, although the actual injury to the owner of the land would amount to very little in a pecuniary view.” In the case at bar the restriction is by no means trifling. On the contrary, the proof was that the restriction impaired the value of the lot to the extent of some $13,000.
The second and decisive point of distinction is that in neither of these cases was there an express covenant with regard to incumbrances. This was specially referred to by Chancellor Walworth in Winne v. Reynolds. This is his language: “It is evident that the defendant, under the decree in this case, will have the same title which he expected to obtain when he entered into this contract with the complainant, and, as the evidence of the-previous knowledge of the defendant of the state of the title does not contradict anything contained in the agreement itself, the vice-chancellor was right in decreeing a specific performance.” The distinction between an express covenant that the property shall be conveyed free from incumbrances, and the implication on that head which arises from the covenant to give a good title, is clearly pointed out by Chancellor Runyon in Institution v. Jones, 37 N. J. Eq. 451. “The agreement is silent,” he observes, “as to the character of the title to be given; and while in such case, in the absence of proof to the contrary, the implication arises that the title to be conveyed is a good one, and therefore free from incumbrances, that implication may be rebutted. Notice is sufficient to rebut the mere implication, and paroi proof is on this ground admissible.” In such a case—that is, where there is no express covenant, and what was intended is left to implication—the vendee “must,” to quote the language used in James v. Lichfield, L. R. 9 Eq. 51, “be taken to have had present in his mind all those things of which lie had notice.” Where, however, nothing has been left to implication or to doubtful phraseology, there is no reason why an express covenant in such a contract should be affected by notice of easements, restrictions, or other incumbrances, any more than if the covenant were contained in an ordinary deed of conveyance. That knowledge or notice of the existence of an easement on the part of a grantee would be no defense to an action against the grantor for the breach of a covenant against incumbrances was expressly held in Huyck v. Andrews, 113 N. Y. 81, 20 N. E. Rep. 581, where the language of Bronson, J., in Mott v. Palmer, 1 N. Y. 564, was quoted with approval.
20 N. E. Rep. 583.