Mead v. Fox

The opinion was delivered at the October term, 1851. Fletcher, J. By a reasonable and just construction of the contract between the parties, the plaintiffs were bound to make to the defendant a good and clear title to the land, in order to hold the defendant liable on his contract as a purchaser. By the terms of the sale, ten days were allowed purchasers to examine the title. Purchasers could have no other object in examining the title, than to see if the plaintiffs could make a good title; and there could be no object whatever in ascertaining whether or not the plaintiffs could make a good title, unless they were bound to make such title, and the purchaser was entitled to have a good and clear title made to him, in order to bind him to the performance of his contract of purchase. The purchaser was allowed time to examine the title, to see if he could get what he had purchased, and whether the plaintiffs actually had and could convey what they had undertaken to sell. The defendant was not bound to take the land and pay for it, unless the plaintiffs would give him a good and clear title to it. Now, upon examining the title, the defendant ascertained, and such clearly was the fact, that the plaintiffs could not convey a good and clear title. The land was incumbered, and the defendant was not bound to take and pay for an incumbered estate. That was not his contract [202] The tender to the defendant of a warranty deed in due form was of no avail, and will not by any means enable the plaintiffs to maintain this action. Cases were cited at the argument, in which it was held, that a tender of a warranty deed by the vendor was a performance on his part, so as to bind the purchaser, though the vendor could not make a clear title; and that by the contract between the parties, the purchaser had contracted not for a clear title, but only for a warranty deed. Aiken v. Sanford, 5 Mass. 494; Gazley v. Price, 16 Johns. 268 ; Tinney v. Ashley, 15 Pick. 546. But this is not such a case. The defendant did not contract for a deed only; he contracted for and purchased the land. The plaintiffs undertook, not to make a deed merely, but to make to the defendant a good and clear title to the land; and as the deed, when tendered and refused, could not convey such title, this action cannot be maintained. It was further maintained in the argument, that if the defendant had originally a right to a good and clear title, yet that he had waived that right. But the case discloses no facts which would constitute such a waiver. The proposition by the defendant to turn out notes was not accepted, and can therefore have no effect. There are no facts in the case to show that the defendant, at any time, agreed to take a deed, w hich would not convey a clear title, or that he had in any way relinquished his right to a good title to the land, according to the original contract. The oral evidence referred to in the case, if admitted, surely could not avail the plaintiffs, or affect the construction which the court have put on the written contract. It is said, that the auctioneer stated: “ The premises are subject to a mortgage, but it will be made ■ perfectly clear.” This clearly goes to strengthen the construction of the contract, that the plaintiffs were to make a good and clear title. It could be of no importance, that the purchaser was told, that the estate was subject to a mortgage, when it appeared, that he was toxd at the same time that it should be made perfectly clear. Judgment must be entered, on the facts, for the defendant.