21 N.J.L. 651 | N.J. | 1846
delivered the opinion of the court.
It was not disputed on the argument, but that the language of the covenant, “to deliver a good and sufficient deed with covenants of warranty,” related to something more than the form of the instrument; that it related to the title, and imported an understanding to convey a good title. Assuming so much, it was argued by the counsel of the plaintiff below, that it was such an acknowledgment of the title of the vendor, by the vendee, that upon breach of the agreement, and ejectment brought for the possession, the vendee was estopped from denying the plaintiff’s title.
The counsel of the defendant below, (who is the plaintiff in error,) on the other hand insisted that such an estoppel can only arise where the vendee has acquired the possession by virtue of the contract; and not to the case of a contract to purchase by one previously in possession. That in case of possession acquired by means of a contract to purchase, if the vendee refuses to complete the contract he must relinquish the possession to the vendor from whom he received it; and upon ejectment brought, cannot deny the vendor’s title, who may in such case recover upon the contract without further evidence of title. He insisted that this principle only applies to those cases where possession has been acquired by such recognition of the vendor’s title.
Whatever may be the limits of the rule, it has been held and it seems .to me justly, that repeated applications to purchase by the defendant to the lessor of the plaintiff, affords a presumption that the defendant came in or held under him. Jackson v. Croy, 12 Johnson 427. This if it goes no further, disposes of the first exception as to the refusal of the judge to non-suit. The contract to take a deed at the end of the year and to pay interest in the mean time, at any rate, formed a prima facie case and entitled the plaintiff to recover unless rebutted.
Cited in Den v. Baldwin, 1 Zab. 405; Lounsberry v. Locander, 10 C. E. Gr. 557.