Judson v. Wass

Van Ness, J. delivered the opinion of the court. There can be no question that the giving of the note, deed, bond, and mortgage, were all to be simultaneous acts. This is the fair construction of the conditions of sale, taking them all together; and many of the cases that have been cited fully support this construction. Even if it were otherwise, as the plaintiff was not in a situation to convey a title, according, to the terms of the sale, the defendant was not bound to carry into effect any of the stipulations on his part. It is now well settled that where, by the conditions of sale, the vendee is required to deposite part of the purchase money, and the vendor is unable to convey a good title, pursuant to the articles, the vendee may disaffirm the contract, and recover back his deposite. In every sale, like the present, there is a condition that the purchaser shall not be bound to part with his money, unless the seller is able to give him a title according to the terms of the sale. The reason and policy upon which this doctrine is found [528] ed are too well known to need repetition; and an inflexible ádiierence to it affords the only effectual protection against fraud and imposition upon purchasers at public auction. By the conditions of sale in this case, the plaintiff stipulated to execute a deed with covenant of warranty, subject to the quit rents on such of the lots as should be designated at the time of the sale. This means, not merely that he will execute a deed containing such a covenant, but that he has the power to give a deed which would carry with it an indefeasible title to the lots, subject to no other encumbrance or charge than that specified in the conditions. (Clute v. Robison, 2 Johns. Rep. 613.) Such a deed the plaintiff was not able to give. The property, at the time of sale, and even down to the time of trial, was under a mortgage ¿to Fonda, for a large sum of money. It is said that this mortgage, being registered, the plaintiff must have purchased with full notice of its existence. The question is not whether he knew of the mortgage, but whether, by the terms of the sale, he is bound to pay for the lots with this encumbrance upon them. If it were possible to entertain a doubt on this question, it would be removed by the consideration that the conditions specify the quit rents as the only encumbrance to which the property was subject. I say the only encumbrance, because the very mention of the quit rents excludes the idea that there was any other. In every view of this case it is clearly against the plaintiff; and there must be judgment for the defendant. Judgment for the defendant.