CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF THE STATE OF NEW-YORK, IN AUGUST TERM, 1826, in the fIFTY-FIRST YEAR OF OUR INDEPENDence. FULLER against HUBBARD and WILLIAMS, administrators of SMITH, deceased. (a) a contract to ASSUMPSIT, commenced in August term, 1821; and Where, on tried at the Chenango circuit, August 26th, 1823, before pay for, and NELSON, C. Judge. The declaration was on the special contract of Fuller land, the moand Smith, as proved upon the trial; and also contained ney has been the money counts. 600 receive a conveyance of paid, though a conveyance has not been scind the con tract and sue for the purchase money The following facts were in evidence at the circuit: given, the venOn the 15th of May, 1812, Smith, the intestate, by a mem- dee cannot reorandum in writing, signed by both parties, agreed to sell Fuller 100 acres of land, in Lisle, Broome county, for dollars, in consideration of 100 part payment. Fuller agreed to yearly instalments, with interest. dollars then received in and interest; but must bring pay the residue in three his action on And upon payment of the contract as one still subsisting. Where one agrees to convey land, on the payment of money, the vendee must not only tender or pay the money; but he must demand a conveyance; and after waiting a reasonable time for it to be made out, must present himself to receive it. Where the agreement is to convey land in fee simple, a judgment, against the vendor will not, at law, authorize the vendee to rescind the contract. A conveyance without covenants would satisfy such an agreement. (a) This cause was decided in October term, 1825. VOL. VI. 3 UTICA, Aug. 1826. Fuller v. Hubbard. these sums, at the times mentioned, Smith agreed to convey to Fuller in fee simple. It was farther agreed, that if the payments were not made at the day, Smith might elect to go on with the contract or not. Payments were made by Fuller from time to time, to the intestate and the plaintiffs, to the amount of the whole consideration money and interest; the last payment being made to the plaintiffs, on the 12th day of May, 1819. The defendants objected that the plaintiff could not recover on the general counts for money had and received; but the objection was overruled. They also objected that the plaintiff could not recover till he had shown a deed prepared by him, and tendered to the heirs of Smith; and that they had neglected or refused to execute it; or, at least, that a conveyance had been demanded of them, and refused. This objection was overruled. They also proposed to show that the plaintiff had been in possession of the land since the contract; and had cut and sold timber to a large amount, which, they insisted, should be deducted from the claim of the plaintiff. This was also overruled; and the jury, under the direction of the judge, found for the plaintiff, the amount of the consideration money and interest. The defendants had pleaded a judgment of $7000, outstanding against the intestate, recovered in 1815, with a debt upon bond and award, against him; and plene administravit except one dollar. To this plea, the plaintiff had replied, praying judgment of assets quando acciderint. G. C. Bronson, for the defendants, moved for a new trial, on the ground; 1. That the plaintiff could not recover on the general counts; but was confined to the special agreement. (Raymond v. Bearnard, 12 John. 274. Clark v. Smith, 14 John. 326. 1 Chit. Pl. 342. Towers v. Barrett, 1 T. R. 133. Power v. Wells, Cowp. 818. 4 Mass. Rep. 504. Weston v. Downes, Doug. 23. Hunt v. Silk, 5 East, 449. Caswell v. The Black River C. & W. Man ufac. Co. 14 John. 453. Taylor v. Hare, 4 B. & P. 260. 2 Ph. Ev. 64. 1 Wheat. Selw. 79. 2 Com. Cont. 56. Sugd. L. V. 206.) He should have elected one, and cannot go on both. (7 T. R. 181. Linningdale v. Livingston, 10 John. 36.) 2. He could not sustain an action, without having first tendered a deed for execution, or at least having demanded a deed from the heirs. (Sugd. L. V. 182, 296, Phil. ed. 1820. Parker v. Parmele, 20 John. 130. Phillips v. Fielding, 2 H. Bl. 123. Greenby v. Cheevers, 9 John. 126.) improper rule of damages; 3. The judge adopted an and rejected proper evidence B. & P. 262, per Heath, J. 1 T. R. 136, per Buller, J. Hopkins v. Lee, 6 Wheat. Rep. 109. 19 Ves. 510-11, per Mast. Rolls, in Dyer v. Hargrave.) J. A. Collier, contra. The contract on the part of the plaintiff was fully performed. After the money was paid, he was, by the terms of his contract, entitled to a deed; and no demand was necessary. (Shackleford v. Barrow, 2 Bay's N. C. Rep. 91. Baker v. Bulstrode, 1 Mod. 104. Pincke v. Curteis, 4 Br. Ch. Rep. 332. Heard v. Wadham, 1 East, 627, Abbott, arg. Sweitzer v. Hummell, 3 Serg. & Rawle's Rep. 228. Lawes' Plead. in Assumpsit, 246. Com. Dig. Pleader (C. 75.) Utica Bank v. Gieson, 18 John. 485.) A large class of authorities establish the distinction between cases where the conveyance and the payment are to be simultaneous; or, in other words, where the covenants are dependent; and where they are independent. (Green v. Reynolds, 2 John. Rep. 207. Jones v. Gardner, 10 John. 266. Parker v. Parmele, 20 John. 130-5. Heard v. Watts, 1 East, 619. 1 Saund. 320 c. M' Crady's exrs. v. Brisbane, 1 Nott & M'Cord's S. C. Rep. 104.) But even in these cases no demand has been held necessary. A performance, or offer to perform, by the vendee, is enough. The late case of Fairfax v. Lewis, (2 Rand. Virg. Rep. 20, 35,) will be found to sustain us throughout, UTICA, Aug. 1826. Fuller V. Hubbard. UTICA, We submit whether the payment was not a sufficient Aug. 1826. demand; and whether this, and waiting a reasonable time, would not satisfy the rule, if a demand was necessary. Fuller V. Hubbard. But if a demand be necessary of the promissor, it is not so of his heirs. The law will not require us to know who they are, or to find them out. There is a privity between them and the administrators; and payment or notice to the latter is equivalent to a payment and notice to the former. But the property was encumbered with a judgment of $70,00. This disqualified the promissor and his heirs from conveying; and dispensed with the necessity of a demand, if it had otherwise been necessary. Seaward v. Willock, 5 East, 198, 202. Sugd. L. V. 164, 5, Am. ed. 1820. Greenby v. Cheever, 9 John. 126. Gillet v. Maynard, 5 John. 87-8. Judson v. Wass, 11 John. 527. Tucker v. Woods, 12 id. 190. Duke of St. Albans v. Shore, 1 H. Bl. 279. Gazley v. Price, 16 John. 269. Ketchum v. Evertson, 13 id. 364. 2 Chit. Pl. 125, note (i).) If there could be no performance, the plaintiff had a right to rescind the contract; and recover back the money on the general counts for money had and received. The offer to show the cutting and conversion of timber was a mere offer to set off damages done by a trespass. We had no right even to enter, till a conveyance; nor, if we had the vendor's consent to enter, could we have cut timber. Our liability sounds in tort. A claim of this sort cannot be set off. (Duncan v. Lyon, 3 John. Ch. Rep. 358, and the cases there cited. Livingston v. Livingston, 4 id. 292.) An action for use and occupation would not lie. (Smith v. Stewart, 6 John. 46.) Staats v. The Exrs. of Ten Eyck, (3 Caines' Rep. 111, 114,) lays down the true rule, as to the measure of damages. It should be the same as if we had received a conveyance, with covenants, and been ejected for defect of the vendor's title. The measure, then, is the consideration paid, with interest. The cases on this head will be found collected in 2 Wheat. Rep. 63 to 65, note. We are liable to be ejected by the heirs. Then is the time to liquidate the claim for the mesne profits of the estate. (Murray v. Gouverneur, 2 John. Cas. 438.) to the out-stand- Bronson, in reply. The objection as Curia, per WOODWORTH, J. The plaintiff was not enti tled to recover under the general counts. The special contract is still subsisting; and the remedy of the plaintiff is on the contract. (Clark v. Smith, 14 Joh. 326.) That the plaintiff had no right to rescind, follows from the conclusion, (which we have come to on another point in the cause,) that the outstanding judgment admitted by the pleadings, was no obstacle in the way of performing the promise to convey according to its terms. The payments were made by the plaintiff upon the foot of the special contract. Every thing has gone on, for a series of years, upon the supposition that the agreement was valid and subsisting. It is unnecessary to consider the question of damages; as we think the action cannot be sustained on the contract, the purchaser not having put the vendor or his heirs in default. In this case, it was necessary for the plaintiff to show, at least, that he had demanded a conveyance from the heirs of Smith, the intestate; and that then, after waiting a reasonable time for making out and executing it, he had offered to receive it. The English law is peculiarly strict. By this, it seems, the vendee, who sues for a breach of the contract to convey, is required, not merely to show payment of the purchase money; he must also prove the preparation and tender of a conveyance ready for execution. Till this is done, the vendor is not put in default. In Baxter v. Lewis, (Forrest's Exch. Rep. 61-2,) on a bill filed by the vendor of land against the purchaser, for a specific performance, the defendant was decreed to pay the purchase money. He neglected to do so, and was attached. A motion being made to set aside UTICA, Aug. 1826. Fuller V. Hubbard. |