Penfield v. Clark

By the Court, Mullin, J. The only question presented for decision on this appeal is, whether a purchaser of real estate is justified in refusing to accept a deed and .pay-for the land under a covenant, by which the vendor has obli- ' gated himself to execute and deliver to the vendee, his heirs and assigns, a deed of conveyance in fee simple, with a covenant against his own acts, when, at the time of the making of such contract, the premises are incumbered by taxes assessed thereon, and, for some part of which, a sale of the [590] premises has actually been had for. a term of years. The deed tendered was, in form, a compliance with the contract. It will be seen that the contract calls for a deed of conveyance in fee simple. This is the kind and nature of the estate to be conveyed. In this State, and indeed generally, in this country, a fee simple will be conveyed by a deed of quit-claim, or by any other form of conveyance by which a grant of the estate of the grantor is made to the grantee, provided the grantor has, at the time, an estate in fee in the premises conveyed; unless a lesser estate is expressly mentioned or necessarily implied. (4 Kent's Com. 461. 2 Hilliard’s Air. 311, § 41, &c. Id. 314, § 63, &c. 3 R. S. 38, §-1, 5th ed.) If the object of the parties to a contract for the sale and purchase of land is to provide for the conveyance only of such an estate as the vendor has in the premises, it is only necessary to provide for a deed of quit-claim. That conveys precisely such estate as the grantor has, and precisely as he holds it. When a deed is called for which shall convey a fee simple, a better estate would seem to be contemplated than one which a mere quit-claim would con-i'vey. The. words of the covenant regulate the estate, not the mere form of the deed. The courts lost sight of the intention of the parties when they construed the contract as regulating the form of the deed, instead of the nature of the estate to be conveyed. But it has never been held, I apprehend, that when the contract called for a deed which conveyed a fee simple, . ti was satisfied by giving a deed which conveyed a fee incumbered by liens. It has been held, in a few cases, that when the vendor covenanted to convey by a good and sufficient deed, or a good warranty deed of conveyance, his covenant was satisfied by a deed good and sufficient in form, notwithstanding the title may have been incumbered, or otherwise de [591] fective. (Gazley v. Price, 16 John. 267. Parker v. Parmele, 20 id. 130. Fuller v. Hubbard, 6 Cowen, 13.) These cases are substantially overruled in the following cases: Clute v. Robison, (2 John. 594 ;) Judson v. Wass, (11 id. 525 ;) Van Epps v. Schenectady, (12 id. 436;) Fletcher v. Button, (6 Barb. 646;) S. C. (4 N. Y. 396 ;) Carpenter v. Bailey, (17 Wend. 244;) Pomeroy v. Drury, (14 Barb. 418 ;) Atkins v. Bahrett, (19 id. 639;) Everson v. Kirtland, (4 Paige, 628;) Traver v. Halsted, (23 Wend. 66;) Burwell v. Jackson, (9 N. 7. 535.) In the latter case, Selden, J., holds that there is, in every contract for the sale of land, an implied warranty that the vendor has a- good title to the premises contracted to be sold, unless such warranty is expressly excluded by the terms of the contract. It is not very material whether the covenant to give a deed, or to give a good and sufficient deed of conveyance, are so construed as to entitle the purchaser to a valid title ; or whether the same result is reached by implying a covenant of warranty- that the vendor has a good title. The case of Burwell v. Jackson seems to me entirely decisive of this case; as it gives to the defendant the benefit of the implied warranty, and holds that the title of the plaintiff being defective when the contract was made, the defendant had the right to treat thé contract as rescinded, and the failure of- title was a good defense to an action for the purchase money. ' -J The plaintiff’s counsel does not, in terms, deny but that the cases cited dispose of this case, unless the provision in the contract that the deed, when given, shall contain a covenant against the plaintiff’s own acts, takes the case out of the principles decided in those cases. It only remains to inquire whether the clause of the contract, referred to, has the effect contended for. It cannot require argument to demonstrate that if in [592] every contract for the. sale of land there is an implied warranty .that the vendor has a good title, unless the warranty is expressly excluded by the terms of the contract, the provision for a covenant against the vendor’s own acts is not an express exclusion of the implied covenant ; that it is in no manner inconsistent with the implied covenant. It is the granting or habendum clause of the deed which transfers the title ; the covenants do not, and were never intended to, convey the title. The covenants in a deed are designed to operate after the title, if there is any, has vested in the purchaser, and by way of damages, to indemnify against any defects or imperfections there may be in the title; or, if there has been an entire want or failure of.title, to indemnify the purchaser, in that contingency. The intention of the parties is to have effect in this as in all other contracts ; and in order to ascertain the intention, it is proper to take in consideration all the provisions of the contract; and if the covenant under consideration shows that it was the design of the vendor to sell, and of the vendee to receive, only such title as the former had, to the premises, we must give it effect. But, as already suggested, the contract calls for the fee, and the law implies that the fee is perfect in the vendor; and if it is not, the vendee is at liberty to disaffirm the contract. The covenant has no operation on the title at the time of making the contract, and does not take effect until the delivery of the deed. A covenant is of very little consequence, when the title is perfect, as it must be, in order to enable the vendor to fulfill his contract. Covenants are taken for more abundant caution. One man is satisfied with the covenant of warranty, only; another wants what is popularly known as a full covenant deed; another is satisfied with the covenant contended for in this case. The kind or nature of the covenant required to be given [593] depends more upon the source from which the title has been derived, by the vendor, than on the nature of the title itself. If the vendor has obtained his grant from a man whose title has been repeatedly examined and known to be perfect, a purchaser might well be satisfied with a covenant that would protect him against any incumbrance attaching, or other defect occurring, since the date of the deed to him. In other words, the covenant throws no light on the intention of the parties, as to the title to be conveyed. Had the contract in question expressly provided that there should be no covenant whatever, in the deed, the defendant would still have been entitled to a perfect title to the land. [Oneida General Term, January 7, 1863. Mullin, Morgan and Bacon, Justices.] I am of the opinion that the referee erred in the construction given by him to the contract; and that his judgment should be reversed, and a new trial ordered; costs to abide the event.