Joyce v. Ryan

Preble J. The defendant, the executrix of the will of Charles Ryan, being duly licensed to sell and convey the real estate of her testator for the payment of his debts, exposed for sale at public auction a certain piece of land, a deed of which had been made to her testator in his life time by John Robertson. The premises named in Robertson's deed were struck off to the plaintiff’, and the defendant accordingly executed to him in due form a deed of the premises containing alsocertain covenants, touching the regularity of her own proceedings in the sale. The plaintiff’ now alleges that the testator had no title to the premises ; and, as nothing passed by the deed from the defendant to himself, he seeks to recover back the consideration money in an action of assumpsit for money had and received. It is a sufficient answer and defence to this action that the plaintiff took his deed with the covenants agreed upon at the time by the parties ; for it is not pretended there was any fraud, circumvention or purposed concealment, practiced by the defendant. And to his action on those [102] covenants he must look for his remedy. If those covenants are not broad enough to meet the exigencies of his case, we cannot enlarge them. Nor can we add to them, or supply their deficiencies indirectly in the form pursued in this case by the plaintiff for to do so, would still be to make a contract for the parties, and not to enforce the one, which they at the time thought proper to make for themselves. The exceptions taken in the court of Common Pleas are accordingly overruled, and the Nonsuit confirmed.