Whitney v. Lewis, 21 Wend. 131

Whitney v. Lewis

21 Wend. 131 | N.Y. Sup. Ct. | 1839

By the Court,

Bronson, J.

Fraud is not alleged. The plea only amounts to this—the plaintiff, knowing that the fee of the land was in a third person, conveyed the same to the defendants, with a covenant for quiet enjoyment. There is no allegation that the plaintiff made any false re-> presentation, or any representation whatever concerning the title. For aught that appears, the defendants knew as much about the title as the plaintiff; and the one party may have been as willing to take the deed and trust to the covenant, as the other was to give it. The conclusion which the defendants draw, that so they have been defrauded, does not follow from the facts set forth in the plea; and if there was no fraud, the defence cannot prevail.

The defendants are also mistaken in supposing that the plea shows a failure of the consideration on which the bond was given. This is not like the case of dependent covenants, or conditions precedent in a deed, where performance by one party depends on the prior performance of the other: nor is it the case of mutual stipulations to do con*134current acts, where neither can maintain an action until he has offered to perform his part of the agreement. It is much like the case of mutual promises, where the undertaking on one side, not the performance, is the consideration for the undertaking on the other ; and both parties may' have an action. Close v. Miller, 10 Johns. R. 90., The agreement of one party was the consideration for the agreement of the other. The plaintiff conveyed and covenanted, in consideration of the, defendants’ obliging ¿themselves to pay $2500; and the defendants bound thémselves to pay that.sum, in consideration of the conveyance and covenant by the plaintiff. The consideration on both sides was executed—not executory. Nothing was to be done in future. Although a right of action might afterwards accrue to both parties—to the one on the covenant for quiet enjoyment, .and to the other on the bond ; yef no subsequent event could make it strictly accurate to say that an executed consideration had failed. If. the "defendants were to sue on the covenant for quiet enjoyment, it would be no answer .to say that they had not paid the bond; aud in this action on their obligation, I do not see how a breach (if it had been alleged) of the plaintiff’s covenant, could be a defencé. It would be allowing a set off of one action against another. ■ . - '

But however the case might have stood had' there been, a breach of the covenant for quiet enjoyment, the plea furnishes no ground for saying that the consideration of the bond has- failed. It is not, alleged that there has been an eviction from the land, or, indeed, that any thing whatever has happened since the contract was made. It falls much short of the case of Frizbee v. Hoffnagle, 11 Johns. R. 50, on which the defendants rely, for there it appeared that the title to land which had been conveyed with warranty had subsequently been defeated by sale under a judgment against the vendor". This failure of title was allowed to be set up as a defence to an action on a note which the' defendant had given to secure - the purchase money of the land, although there had been no eviction. But this case *135was virtually overruled in Vibbard v. Johnson, 19 Johns. R. 77. See also Lattin v. Vail, 17 Wendell, 188.

The plea neither makes out a failure, nor does it show all original want of consideration. Although the plaintiff had no title whatever, yet, if there was no fraud, the conveyance of the land with a covenant for quiet enjoyment was a sufficient consideration for an undertaking to pay the money. But the case stands much stronger than this for the plaintiff. If title to the land were the only consideration for the bond, still the plea does not go to the whole consideration. It is not alleged that the plaintiff had no interest whatever in the land, but only that he was not seised in fee, and that the defendants have not acquired the fee. All this may be true, and yet the plaintiff may have had a life estate, or a term of 100 years in the land. So too, the legal fee may have been in a third person while the whole beneficial interest was in the plaintiff; and although the defendants did not acquire the fee by the deed, they may have acquired a right to a conveyance from him in whom the fee is vested. Again, if the defendants get nothing else, the actual seisin or possession of the land may have passed by the deed ; and, so far as appears, they are now in the quiet enjoyment of the property. If the defendants have derived a benefit under the contract, though less than they expected to receive, they cannot now rescind it. The only way that justice can be done to both parties, is by leaving each to his action. Boone v. Eyre, 1 H. Black. 273, note (a). Campbell v. Jones, 6 T. R. 570. Franhlin v. Miller, 4 Ad. & El. 509. Stavers v. Curling, 3 Bing. N. C. 355.

Judgment for plaintiff.