Sandford v. . Travers

*143 Hurray, J. The deed of the defendant, Hester Ann Travers, is not void, under section 147 of 1 E. S, page 739, for the reason there is no evidence in the case, showing that, at the time such conveyance was delivered, the lots, or any part thereof, were in the actual possession of any person claiming*’ under a title adverse to that of the grantors. The lease from the mayor, aldermen, and commonalty of the city of Hew York, under which Dusenbury claimed to hold ten of the lots, bears date June 6th, 1850. The deed, through which the plaintiffs’ testator obtained title, bears date January 5th, 1854, nearly four years subsequent to the date of that lease. Ho part of the incumbrance on said premises was imposed by anything the plaintiffs or their testator did, or suffered to be done. Therefore, none of the covenants in the deed, given, by the said executors, to the defendant, Hester Ann, are broken by the existence of the incumbrance complained of. There was no breach of covenant, of which the defendants could complain, as against the plaintiffs. There is nothing in the deed or mortgage, which should prevent a judgment of foreclosure for the non-payment of the interest when it became due. Ho covenants will be implied in any conveyance of real estate. (1 R. S., 738 § 140; Burwell v. Jackson, 5 Selden, 535; The Mayor, &c., v. Mabie, 3 Kernan, 151.) The defendants, on the trial, offered to prove the amount of the damages they had sustained in consequence of the breach of the plaintiffs’ covenants, for the purpose of a counter claim. That was objected to by the plaintiffs, and excluded by the referee. The defendants excepted. The bond, which the mortgage was given to secure, was given by both defendants. The building contract was signed by both defendants. The bond, mortgage, and contract, arose out of the same transaction. The defendants, therefore, had a right to counter claim any damages they sustained, in consequence of a breach of the covenants of plaintiffs, either express, or implied, in said contract. (Code, §§ 149,150.) That brings up the question, whether the plaintiffs, by *144 the building contract, agreed that these premises should be in a suitable condition to build upon, when the defendants were required, by the contract, to proceed with the building. Ho such covenants were expressed in the contract. A covenant may be implied in such contract. (Barton v. McLean, 5 Hill, 256, and cases cited.)' The statute, that no covenant will be implied in any conveyance of real estate, does not apply to this contract. It is not a conveyance of real estate. (Tone v. Brace, 11 Paige, 566; The Mayor, &c., v. Mabie, cited above; Burwell v. Jackson, cited above.) This contract was signed by the parties. It commences with the words, “ Agreement entered into between the parties,” which make it mutual. But it recites the then giving of said deed, and refers to it as a part of the contract, and thén says, “ in consideration of the premises evidently cited with the intention of showing the relation between the parties, as to the lands, on which the houses were to be erected; also reciting the fact that a portion of the security of the purchase money of said premises, was to consist of buildings and improvements thereon to be erected by defendants, repelling the idea that the plaintiffs, on their part, were to enter into any new covenants or to incur any new responsibility. It cannot be inferred from the contract that the plaintiffs so intended, or that the defendants so understood it. Ho covenants can he implied in said contract, in addition to those expressed. The referee was right in excluding the offer to counter claim damages. There is some question, whether the offer of defendants presented this question, on the contract, but I prefer to place my opinion on the merits, overlooking any technical questions. In this transaction, the parties probably acted under a mutual mistake of facts. Heither contemplated that there was any question about the title, or that there was any incumbrance thereon. The defendants have derived no benefit from said purchase. Equity would require, plaintiffs consenting *145 thereto, that the defendants be charged with no deficiency. The judgment should he so modified, and, in all other things, affirmed. The defendants should be charged with costs of this appeal. All the judges were for affirmance with the modification suggested in Murray, J.’s opinion, the plaintiffs having consented thereto on the argument. Judgment affirmed, with costs, except as to personal judgment for deficiency, which was stricken out.