6 Paige Ch. 407 | New York Court of Chancery | 1837
There was no reason whatever for appealing from the decision upon the motion to suppress testimony.. Only two days notice of the application was given when the rules of the court required four. This of itself would have been a sufficient reason for denying the motion even if the testimony had been irrelevant. Most of the evidence objected to, however, was proper, upon the supposition that the legal effect of the written instrument was as contended for by the defendant’s counsel; as it went to show that there was no difficulty in obtaining a release from the patroon so as to" make a perfect title, if the defendant had attended on the first of April, according to his agreement, and had put his refusal to complete the purchase upon that ground. Time was not made a material part of the contract. And if the agreement had in terms required the complainant to give a perfect title in fee' of the premises, free from every condition whatever, this court would have decreed a specific performance upon his obtaining a full release of all the covenants and conditions in the lease from Van Rensselaer, This testimony, tended to prove that the defendant was acting in bad faith, by attempting to take advantage of what he supposed to be a technical defect in the title, which was not expressly provided for in the written agreement, although perfectly understood by both parties. If the decree, therefore, had directed a specific performance only upon condition that the complainant procured a full release from the patroon, this evidence was sufficient to show that the defendant should be charged with the payment of the costs. Had he intended to avail himself of this technical objéction, and at the ' same time to save himself the costs of a useless litigation* he should have attended on the first of April at the place appointed and insisted upon a strict performance of the written contract notwithstanding the parol understanding of the .parties that he was tó take the title as conveyed to
In the case of Gazely v. Price, (16 John. Rep. 268,) the former supreme court of this state decided, how correctly I will not undertake to say, that a covenant to give to the purchaser a good and sufficient deed of premises contracted to be sold, was to be considered as complied with, at law, by the execution of a conveyance good in point of law to pass to the purchaser whatever title the vendor had in the premises sold. And that court adhered to such decision in the subsequent case of Parker v. Parmalee, (20 Idem, 130,) where the covenant was to execute a good warrantee deed of conveyance of the lot. Without stopping to inquire whether this is the correct construction of such a covenant, according to the intention of the parties, where there is
The reservation in the patroon’s lease to Winne of mines, minerals and streams of water, &c. was not intended to cover any thing of the kind which was supposed actually to exist upon or in this land. But this reservation, as well as the nominal rent and the pre-emptive right of purchase which is contained therein, arose from the circumstance of the grantor’s agent taking a blank lease to fill up for the purpose of making the conveyance, and to save himself the trouble of writing an absolute deed. The legal construction of the instrument, however, must be determined from its actual contents. And I only refer to these circumstances to show why such reservations of minerals and water privileges are found in the conveyance of a lot of land upon which nothing of that kind was supposed to exist. There is no evidence to show the existence of minerals upon the lot; and as the testimony shows there were no such streams or runs of water as contemplated by this reservation, the reservation itself forms no valid objection whatever to the complainant’s title. The defendant might as well object to the title on the ground that the original grant from the crown contained a reservation of the royal mines of gold and silver, which may, by a bare possibility be contained in
As the law does not regard trifles, the reservation of a pepper corn rent, or any thing else which is merely nominal, is not an objection to the title which could justify a court in refusing a specific performance, even where the defendant had contracted to purchase without any notice that such nominal rent was reserved. And the year’s rent, or one pound of wheat which is reserved in the nature of a fine upon the alienation of the property, is, if possible, of still less consequence than the annual reservation of a pepper corn as rent upon a lease in fee. The pre-emptive right of purchase, however, is a partial restriction upon the power of alienation. It is 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 this case, therefore, if the defendant had in terms contracted for the conveyance of a perfect title, without notice of the existence of such a clause in the lease, I should not compel him to take the title of the complainant without compensation for this injury, unless the vendor should be able to procure a release of this condition so as to make a clear title.
There is no doubt, however, from the testimony, that the defendant knew of the existence of this covenant in the
The decree appealed from must therefore be affirmed with costs.