Gazley v. Price

Spencer, Ch. J. delivered the opinion of the Court. There can be no doubt that the covenant to give a good and sufficient deed, and the covenant to pay part, and give security for the remainder of the consideration, are dependent ..covenants; and neither party could sue the other, without [269] averting a performance, or a readiness to perform on his part. (2 Johns. Rep. 207. 10 Johns. Rep. 266.) In the present case, the plaintiff alleges, that he has given to the defendant a deed of the premises, according to the tenor and effect of the articles of agreement; and this averment implies that the deed was accepted by the defendant. We are to consider whether the second plea, which states that the plaintiff was not, on the day when the covenant required the deed to be given, seised of the premises, and that he had not good right to convey the same, is any answer to the declaration. In the case of Jones v. Gardner, (10 Johns. Rep. 266.) the covenant was to give a good and sufficient deed in law to vest the purchaser with the title of the farm of land, with the appurtenances ; and it appeared that the plaintiff’s wife had not duly executed the deed, so as to pass her right of dower; and we held, not only that the covenants were dependent, but that the deed was not a fulfillment of the contract, because the agreement being to give a deed which should vest in the defendant the title of the farm, which meant the legal estate, in fee, free and clear of all valid claims, liens, and incumbrances, the claim of dower not being released, the absolute title was not vested; for it was liable to be defeated, in part, by the right of dower in the plaintiff’s wife. The covenant in this case,, is different; the plaintiff bound himself only to give a good and sufficient deed for the premises. This relates merely to the validity and sufficiency of the conveyance, in point of law, to pass whatever right the plaintiff had in the lands to the defendant. The case of Van Eps v. The Corporation of Schenectady, (12 Johns. Rep. 442.) was very well considered ; and we there .held, that by an argreement to give a deed, no greater duty or obligation was created, than to execute a conveyance, or assurance of the property, without warranty or personal covenants; and several cases were referred to in support of that proposition. The additional words, “ a good and sufficient,” cannot alter the construction of the agreement; they denote only the species of deed to be given, and have no reference to the title to be conveyed. Indeed, they only go to designate, more clearly the quality of the deed, but [270] they fail entirely to point out the kind of warranty which should be annexed to the acquisition of the title. The third plea has been specially demurred to, for con-eluding with a verification, instead of tendering an issue to the country ; and the rule undoubtedly is, that where there is an affirmative on the one side, and a negative on the other, or vice versa, the conclusion must be to the country. (1 Saund. 103. n. 1.) The declaration had averred the giving a good and sufficient deed for the premises, according to the tenor and effect of the article of agreement; the plea negatives the fact, almost in totidem verbis ; and thus a complete issue was joined, ready to be tried, and there was nothing to refer to the Court. Judgment for the plaintiff.