Marsh v. Holley

Carpenter, J. The plaintiff seeks to recover, either on the count in covenant for a breach of the covenants contained in the bond, or on the counts in assumpsit for the money paid by the plaintiff under the contract. The defendant’s covenant is a conditional one; and the condition imposes a duty upon the plaintiff, the performance of which, or a legal excuse for non-performance, is essential to his right of recovery. The finding is explicit that he neither performed nor offered to perform his part of the contract. But he insists that he is excused from performance, and that the defendant is liable for not performing his covenants. This excuse is two-fold:—1. That the co-tenants of the defendant in the mineral right in the real estate of John M. Holley, deceased, have a right to dig for ores in any pai’t of [462] •the estate and place the earth and debris on the Forter farm, (in which is the right or interest contended for by the plaintiff,) and that this right constitutes an incumbrance upon the premises which prevents the defendant from conveying a good title; which incumbrance, he insists, not only excuses the performance of the conditions on his own part, but is itself a broach, or equivalent to a breach, of the defendant’s covenants. We do not think this a correct view of the law. All the iron ores in the land belonging to the estate of John M. Holley were separated from the land, and a new estate created in which each of the heirs had an undivided seventh part. The distribution provides that certain damage done to the land of any of the distributees in digging for ores, &c., shall bo paid; but there is no provision for paying damage to a co-tenant in the ore estate. The interest of each tenant in that estate is such, and such only, as the law gives. The right to dig for ores, and of necessity to deposit the earth and debris somewhere, inheres in the estate itself. The damage done to land owned by an individual, who may, or who may not, bo interested in the ore, shall be paid ; but the damage done by the co-tenants to each other is an inconvenience inseparable from (he nature of the estate, and to which each must submit. It is a legal incident like that which pertains to all joint tenants or tenants in common of an estate. As such it is no more an incumbrance than the right of eminent domain, or the right to levy and collect taxes, which exist with regard to all estates. 2. The plaintiff claims, in the next place, that the defendant, being an owner of an undivided interest in the ore estate., which estate exists in all the land belonging to the estate of John M. Holley, cannot sell liis interest in a part only of the land without the concurrence of his co-tenants. We think it must be conceded that the defendant was able to give just such a deed as he agreed to give, and just such a deed as the plaintiff agreed to receive. The condition of the estate, and of the defendant’s title thereto, was apparent upon the record. Presumptively, therefore, whatever in [463] firmity there is in such a deed was as well known to the plaintiff then as now. At least the difficulty of conveying such a title as he contracted for was apparent. We assume, however, that the plaintiff was not bound to advance his money and receive therefor a deed which conveyed only an imperfect or defective title. It would certainly seem to be a reasonable construction of the contract to hold that the parties contemplated that the plaintiff should receive a perfect title; and therefore' that he should not be required to receive a defective one, and take the risk of being evicted, and, if evicted, to be compelled to resort to his remedy upon the covenants in the deed. On the other hand, the defendant claims that when he was first informed of this objection, (which was not until after the time limited in the bond for paying the money and taking a deed had expired,) he arranged verbally with the other heirs to unite with him in the conveyance provided for in the bond, or in some other manner to ratify and confirm the same, and further claimed that at the time of the trial he was able and willing to make a good conveyance of said mineral right whenever the plaintiff should fulfill the bond on his part. It was certainly possible for the defendant to have given a good title in the manner indicated. Hartford & Salisbury Ore Co. v. Miller, 41 Conn., 112. If the plaintiff at the time had given this reason for not paying the money, we think it is quite clear that the difficulty might have been removed. We are unable to see why the defendant was not entitled to a reasonable opportunity to make a good title. He was not bound to do so until the money was paid or tendered, conditioned upon receiving a good title. When paid, or thus tendered, the plaintiff might then have demanded a perfect title. It is not enough to say that this objection was not known until afterwards. His knowledge, or want of knowledge, of the difficulty of giving a good title could not destroy or impair the defendant’s rights. We conclude, therefore, that it was the plaintiff’s duty to pay, or at least to be ready and willing to pay, the money according to the condition in the bond. His failure to do so is a fatal objection to his [464] right to recover for a breach of the covenants. In other words, the legal difficulty of conveying a good title is not per se a breach of the defendant’s covenants. The plaintiff further claims that he is entitled to recover upon the money counts. The grounds of this claim are, that the defendant being unable to convey by reason of the insufficiency of his title, or by reason of an incumbrance upon the premises, the plaintiff may treat the contract as rescinded; that “ both parties supposed when the bond was given that the defendant had and could convey a good title to the property therein described,” and therefore the consideration was paid and received under a mutual mistake ; and lastly, that the defendant, by his act of joining in the deed of August 11th, 1873, to Miller, will be deemed to have rescinded his contract, inasmuch as he thereby parted with a right which left his own title different from the title which he agreed to convey to the plaintiff. We have no occasion to examine these sevei’al reasons for the purpose of determining whether this claim is well founded, for there is one fact in the case which, in its present aspect, effectually,bars the plaintiff’s right to claim that the contract has been abandoned or rescinded. By a reference to the record in the case of The Hartford & Salisbury Ore Co. v. Miller, which record is made a part of this case, it will appear that the plaintiff on the 17th day of October, 1870, caused the bond now in suit to be recorded in the Salisbury records, and at the time thfe report of the committee in that case was made, (December 18th, 1873,) still insisted on an equity right in the premises. It nowhere appears that the plaintiff has ever abandoned that right or claim; nor does it ’ appear that whatever right in equity he acquired in the premises by recording his bond has ever been transferred or tendered to the defendant. On the contrary it remains upon record, a declaration to the whole world that he claims under it as an existing and outstanding contract, and operates as a cloud upon the defendant’s title; Whatever rights, therefore, the plaintiff may have in respect to the consideration paid [465] under this contract, he is not now in a condition to enforce those rights, and will not be until he has done at least all in his power to place the defendant in statu quo. We therefore advise the Superior Court to render judgment for the defendant. In this opinion the other judges concurred.