Curtis v. Clark

0. Allen, J. The statement of facts in this case is rather meagre, but we think it sufficiently appears that the plaintiff was to convey to the defendant a good title to the land, by a good and sufficient deed, at the time of receiving the cash and notes for the price; that he failed to do so, and delivered, instead of a deed, a paper which conveyed no title; that he has never tendered or offered to execute and deliver a valid deed; and that the defendant did not intend to accept an invalid deed in lieu of a valid one. For the personal property, the plaintiff was more than paid, in cash. The notes, therefore, are to be treated as applicable only to the real estate. The consideration of the note in suit was a part of the price of the real estate. Through the plaintiff’s fault, no title was conveyed. The defendant has never sought by bill in equity to compel the plaintiff to make a title to him. The plaintiff has never offered to make such title to the defendant, though it was in bis power to do so. Under these circumstances, both parties are to be treated as having rescinded the bargain, so far as the real estate is concerned, and the consideration of the note entirely fails. Rice v. Goddard, 14 Pick. 293. Trask v. Vinson, 20 Pick. 105, 110. Basford v. Pearson, 9 Allen, 387. The fact that the defendant was in possession for several years does not help the plaintiff. The consideration of the note was not for use and occupation, but [511] for a title. No case is cited, or has been found, which holds that a vendor of land, who has agreed to give a good and valid deed at the time of receiving a promissory note for the price, and who has received the note, but through his own fault has failed to give or to offer to give such deed, can recover on the note; even though the vendee has for a time been in the use and occupation of the land. See Sugd. Vend. & P. 240; Dart Vend. & P. (5th. ed.) 961, 962; Bay ley on Bills, 507; Bank of Columbia v. Sagner, 1 Pet. 455. Judgment for the defendant affirmed.