Heard v. Knights of Honor

Hemingway, J. 1» Defense to action for price of land. The defendant admitted in his answer that he contracted to buy the land at the price claimed in the complaint, and the only ground relied upon to defeat a recovery was that the plaintiff’s title was encumbered. In our opinion the defense is unavailing. When the contract was made, the plaintiff prepared and tendered a deed which the defendant agreed to accept, and which, under the contract, was deposited as an escrow, beyond plaintiff’s control, to be delivered to the defendant when he paid the stipulated price. The plaintiff satisfied the terms of the contract when he made the escrow, and the defendant was bound to pay the stipulated price for the title it passed ; the contract was so far executed that the defendant entered into possession and used and enjoyed the land, and the only thing needed to complete its execution was the payment of the purchase money, whereby the escrow would become operative as a deed. Such being the case, the defendant cannot refuse to comply with his part of the contract merely because the deed would pass an encumbered title. If he wished a title free from encumbrances, he should have satisfied himself in that regard before he approved the escrow and took possession of the land; having taken possession and agreed to pay for that deed, he is liable upon his promise, and must look to the covenants of the deed for indemnity against prior liens. He certainly has no cause to complain of the decree which postpones, joro tanto, the collection of the price until the lien is satisfied. 2. statute of ^ pleaded- He argues here that no recovery can be had because the contract was within the statute of frauds. That defense was not set up or in any way relied upon below; the answer admitted that the contract was made, and sought to avoid payment only because there was a defect in plaintiff’s title. That precludes a reliance upon the statute of frauds here, and relieves us of the necessity of considering the questions urged with reference to it. Affirm.