7 Conn. 291 | Conn. | 1828
Lead Opinion
Upon the trial, the defendants resisted the plaintiff’s claim, on five grounds, viz.
1. That the plaintiff showed no other title than an unrecorded deed from his immediate grantor.
2. That the plaintiff proved no consideration for the defendant’s promise.
3. That there was a material variance between the declaration and the testimony in the description of the notes to be taken up by the defendant.
5. That the damages were unliquidated, and as none were proved, none could be recovered.
The court charged the jury in favour of the plaintiff, and they returned a verdict accordingly
1. An unrecorded deed from the plaintiff’s grantor is good between the parties, and would be sufficient for the plaintiff in an action of ejectment against a wrong-doer; as a valid deed, accompanied by possession, is prima facie evidence of title ; and it is unnecessary for the plaintiff, in the first instance, to trace back his title to the origin of titles. 1 Sw. Dig. 507.
2. A sufficient consideration for the defendant’s promise is alleged in the first count. The contract is mutual and promise for promise. 1 Pow. on Contr. 357. There seems not to have been any direct proof of an express consideration. But one is strongly implied. In the first count, the plaintiff avers, that at the request of the defendant, he agreed to sell, and in consideration thereof, the defendant agreed to buy and pay-In the second count, the plaintiff avers, that the defendant agreed to buy and the plaintiff to sell, and recites the written evidence of their agreement; and the evidence on this point was submitted to the jury. But, says Powell, it is not necessary that in contracts or agreements, the consideration should be expressed, it being sufficient if it can be collected out of them from circumstances. Pow. on Contr. 368
3. The suggestion of a variance between the declaration and proof, respecting the notes to be taken up by the defendant, is unfounded, as it no where appears that said notes were on interest.
4. The defendant’s contract was broken, when he refused to accept the deed, take up and deliver to the plaintiff his notes to Jonathan Cutler, and give security to fulfil his contract.
5. This objection presents the principal question in this case. Is the debt demanded a p nalty, or liquidated damages ? Where it is agreed, that if a party do or omit something, which may be injurious to another, a sum shall be paid, this sum may be considered liquidated damages, in all cases where the d mages are uncertain and depend on the discretion of the jury. In such cases, the parties may stipulate for the consequences of the breach of contract. 1 Sw. Dig. 680. 1 H.
The decision below was correct; and I do not advise a new trial.
Dissenting Opinion
The plaintiff has brought an action upon an agreement made by the defendant, that he would purchase of him an estate in land ; in which he has averred title in himseh, performance on his part, and non-performance by the defendant.
To sustain this suit, the plaintiff must prove title and a valid contract in writing; the performance of conditions precedent; and the damages sustained.
My observations will be confined to the non-performance of precedent conditions on the plaintiff’s part, and specifically, to the deficiency of his proof of title.
On this point, two enquiries are necessarily presented, viz. with what title ought the plaintiff to be invested ; and in what manner is he bound to prove it.
1. The plaintiff, in order to sustain his action for the nonacceptance of his deed, must have a clear undoubted title to the premises in fee simple. Sugden, in his Law of Vendors and Purchasers, (p. 200.) remarks, that to enable equity to enforce a specific performance against the purchaser, the title to the estate ought, like Caesar's wife, to be free even from suspicion ; for that it would be an extraordinary proceeding for a court of equity to compel a purchaser to take an estate, which it cannot warrant to him. It hath, therefore, says this author, become a settled and invariable rule, that a purchaser shall not be compelled to take a doubtful title. Marlow v. Smith, 2 P. Wms. 201. Shapland v. Smith, 1 Bro. C C.75. Cooper & al. v. Denne, 4 Bro. C. C. 80. 1 Ves. jun. 565. Crewe v. Dicken, 4 Ves. jun. 97. Rose v. Calland, 5Ves. jun. 186. Roalte v. Kidd, 5 Ves. jun. 647.
2. As the plaintiff must have a clear and undoubted title to the land which he contracts to sell, or the defendant is not obliged to go on with the purchase, the question arises, in what manner is he obliged to prove his title at the trial ? The general answer is obvious. The plaintiff must allege in his declaration, that he has title ; and of consequence, he who avers this fact affirmatively, must prove it. 1 Phil. Ev. 150. If he omit this allegation, his declaration is defective; and having made it, it must be sustained, by the same degree of evidence as his other averments. If the title has been acquired, by an exclusive possession of fifteen years, this fact must be established ; if by descent, the requisite facts must appear, including proof of the ancestor’s title ; and if the plaintiff claim by deed, the deed must be exhibited and proved, together with the title of the grantor. If it be asked, why should he go beyond the production and proof of his own deed, the conclusive answer is, that the deed, without evidence of the grantor’s title, proves nothing, in respect of title, but only a mere fact, that a deed
That the plaintiff’s title, in an action like the one before us, must be strictly proved, is a decided principle. And the only deviation from it (if such it may be called) is the decision of Lord Kenyon, in Thompson v. Miles, 1 Esp. Rep. 184. who held, that the title deeds must be exhibited, but that the proof of their execution, except of the one under which the plaintiff immediately claimed, was unnecessary. This bears a near resemblance to our practice in permitting the chain of antecedent conveyances to be supplied from the records of deeds by
3. The plaintiff being obliged to aver his title, and to prove it in the same manner as any other fact must be proved, by the person asserting it; it remains to consider the proof of his title in this case.
The land in question is claimed to have been owned by George B. Hutchins. On the 29th of October, 1825, Hutchins gave to the plaintiff a deed of the premises, and on the 13th of December, in the same year, the agreement of the parties now in suit was made. Forty-four days only elapsed from the delivery of the above-mentioned deed to the plaintiff, to the date of the contract in question, during which period the plaintiff was in possession of the land said to be conveyed to him by Hutchins. This deed is unrecorded, and the exhibition of it at the trial was the only evidence in relation to the plaintiff’s title. No offer was made to show, that Hutchins had acquired title by inheritance, deed, possession or in any other manner. The court charged the jury, that such deed alone, accompanied by the aforesaid possession, was prima facie evidence of title, especially as no objection had been made, on this ground, to the fulfilment of the contract.
In the first place, I object to the opinien of the court, in charging the jury, that the deed and the short possession of a few days, were prima facie evidence of title. So far from this, they were only a small link in the chain of evidence.
The point to be proved was title, absolute and clear of all reasonable doubt. That there was a remote presumption in favour of the plaintiff’s title, was not the question on trial. The plaintiff had averred in his declaration, that he had title to the land in question; and this allegation, in its length
It is perfectly compatible with the plaintiíf ’s testimony, that Hutchins was a disseisor a few days before he made his deed to the plaintiff; that the plaintiff became a trespasser, by his entry on the land ; and that his deed to the defendant could be of no possible effect. The law does not imply, that the plaintiff had title, because a deed was given him, perhaps, by a person who had no pretence of right; nor is a title proved, by evidence, that evinces only a small part of a title. Nor do I understand what is intended by prima facie evidence, in this case ; unless the judge meant to declare, that the title was in-ferable from two facts, viz. the deed and forty-four days possession ; or that the law gives a technical efficacy to the proof adduced, beyond its natural import; for either of which assertions there is no ground. On the contrary, I am clear, if any allegation ever required plenary evidence, it is eminently true of the averment of title made by the plaintiff. On him is the onus of proof; his title is peculiarly within his own knowledge : he has affirmed it as the necessary basis of his action ; and hence there is a concurrence of every consideration to impose on him the necessity of full proof.
I likewise object to the qualification of the charge, that the deed of Hutchins, accompanied with the possession a few days, was sufficient prima facie, especially, when no objection was made to the fulfilment of the contract on that account. This silence is no dispensation of the proof requisite to sustain the plaintiff’s allegation of title. The title is the main pillar of the plaintiff’s action: he must have it; he must aver it; and he must prove it; and neither the s-lence of the defendant, nor even any parol declarations of his, can take away or impair the obligation resting on the plaintiff to substantiate this indispensable fact.
I have no doubt that the charge of the judge was incorrect; and that for aught this court can discern, the defendant has a verdict against him, for not accepting a deed of land, from a
New trial not to be granted.