20 Johns. 130 | N.Y. Sup. Ct. | 1822
delivered the opinion of the Court.
1. Is it competent to the defendant to draw in question the plaintiff’s title to the lot ? and what is the true and just construction of the plaintiff’s covenant as to title ?
In Gazely v. Price, (16 Johns. Rep. 268.) I delivered the opinion of the Court, and supposed I had not only expressed the opinion of my brethren, but had, also, given effect
I considered the covenant, in that case, as relating merely to the validity and sufficiency of the conveyance, in point of law, to pass whatever right the plaintiff had in the lands, to the defendant; and the case of Van Eps v. The Corporation of Schenectady, (12 Johns. Rep. 442.) was referred to, as substantially deciding the question. I held, that the additional words, “ good and sufficient,” directed only the species of deed to be given, and had no reference to the title to be conveyed.
Here, the plaintiff’s covenant is, to execute a good warrantee deed of conveyance of the lot; and if the case of Gazely v. Price was correctly decided, it puts an end to the question; for no human ingenuity is capable of discriminating the two cases. The case supposed to hold a different doctrine, is that of Clute v. Robinson, in the Court of Errors; (2 Johns. Rep. 595.) and it is true, that the then Ch. J. Kent, did say, that a covenant to execute and deliver-a good and sufficient deed of a piece of land, did not mean merely a conveyance, good in point of form, but an operative conveyance; one that carried with it a good and sufficient title to the lands to be conveyed; and he proceeds to say, that the appellant confesséd, in his answer, that this was the understanding of the parties, as his title was not then complete. In the particular case-, the opinion expressed was perfectly correct; but we must remember, that this case was on an appeal from the Court of Chancery; and I fully concur in the proposition, that where a party seeks the aid of a Court of equity, to enforce a specific execution of ap agreement, for the acceptance of a conveyance of a
Now, the material difference between the case of Judsonmid, Wass, and this case, is, that the former was assumpsit, to recover the consideration money, and this is an action upon a covenant under the hands and seals of the parties. It is perfectly competent to the defendant, in assumpsit, to set up a failure of consideration, as a complete defence. In that case, the lots sold were heavily incumbered; that incumbrance had not been made known to the purchaser 5 and one of the conditions of the sale was, th^fi the lands should be subject only to a quit-rent. There was, then, a failure of consideration ; and, in fact, a fraud on the purchaser, in the representation of his title to the land. The defence was perfect, and conformable to all the decisions on the subject,
In Vrooman v. Phelps, (2 Johns. Rep. 177.) it was expressly decided, that a specialty could not be invalidated for any other cause than the illegality of the consideration. And it is there stated to have been repeatedly decided, that the breach of a written warranty, as to the quantity of the goods sold, made antecedently, though false and fraudulent, and though it may have induced the defendant to make the purchase, cannot be pleaded in discharge of a bond given for the consideration. Subjoined, in a note to this case, is the case of Dorlan v. Sammis, upon a writ of error to the common pleas of Queens, in which this Court said, there is no case in which a bond can be set aside, but where the consideration is void in law, or where there is fraud, A mere failure of consideration is no defence at law. That this doctrine is well founded, the case of Collins v. Blantern, (2 Wils. 347.) and 1 Fonb. 112. in the notes, fully show. Powell (on Contracts, vol. 1. p. 333.) is very full on this point. He says, the cause or consideration is not inquirable into, but the party ought only to answer the deed. It is not for me to question the wisdom of the common law, in denying to a party who has entered into an agreement, under his hand and seal, a right to impeach it, on the ground of a want of consideration. It is sufficient that the law is so, The plea in avoidance of a payment of the money stipulated to be paid, in effect, says, that the defendant ought not to pay it, because the plaintiff did not own the land on the day he agreed to convey it, nor has he since owned it. • This is showing that there existed no consideration, as regarded the defendant, for if he paid, he would get no equivalent for his money. In all the books of precedents, I do not believe there is such a plea to be found. One word more, as to the plaintiff’s covenant to execute a good warrantee deed of conveyance of the lot to the defendant. It appears to me, that it is impossible to torture the expression, to mean, that he will give a good title. It is to be a good, warrantee deed of conveyance. The word “good” refers only to the instrument of conveyance;
3. The second plea Is, that the plaintiff did not, on the I si of January, 1818, tender, or offer to execute, to the defendant, a good warrantee deed of conveyance of the lot, nor has lie since offered and tendered, &c. The case of Gazely v. Price shows, that the covenants in this case are dependent. The whole consideration money was to be paid on that day ; and, on the payment, the deed was to be given °, the acts were to be concurrent. This was fully and clearly settled, in the case of Green v. Reynolds, (2 Johns. Rep. 307.) and in Jones v. Gardner, (10 Johns. Rep. 266.) The same principle was, also, adopted in Porter v. Rose, (12 Johns. Rep. 212.)
Then the question arises, whether the plaintiff, the vendor, can maintain this action, without an actual tender, or offer to convey. The averment in the declaration is, only, that he was ready and willing to convey. In Green v. Reynolds, the Court say, that on such a covenant, the fair latent and good sense of the contract is, that the money is
Judgment for the defendant, accordingly.
Vide Robb v. Montgomery, ante, p. 15. and Hudson v. Swift, ante, p. 24.