Wheeler v. Ball

Ellisoít, J. It will b.e noticed that this claim or action is not based on the McAfee notes themselves, but is for money paid out by plaintiffs in extinguishing these notes. Ball’s liability to plaintiffs must arise either from his request to plaintiffs to pay for him his debt, or by reason of the obligations imposed by the title bond or deed, executed by his administrator. There is no pretense of any request from Ball to plaintiffs, and all liability in this action must, therefore, arise either on the bond or deed. I can see no reason and am not aware of any authority, for the position that [450] tile bond, as we find it, gives plaintiffs any rights against the defendant. The only contract contained in the bond was for the execution of a warranty deed to plaintiffs, when they should pay the purchase money therein stipulated. This purchase price was paid, and a deed, such as plaintiffs asked at the hands of the probate. court, was executed and accepted by plaintiffs, and they surrendered up their bond. Before the execution of the deed and the surrender of the bond, while the contract was yet executory, plaintiffs’ rights were far greater than after. “The distinction between the rules which govern the relation of vendor and purchaser, before and after the execution of the deed, while the contract is still executory and after it is executed, is a broad and familiar one. The general principles of the contract of sale of real estate, while the contract is still executory, recognize and enforce the right of a purchaser to a title clear of defects and incumbrances, but when the contract has been consummated by the execution and delivery of the deed, a different rule comes in.” Dart on Vendors, 734. When the contract has been consummated by a deed, 'the terms of the deed fill the measure of the rights of the parties, and the contract merges in the deed. House v. Barker, 3 Johns. 506; Houghtaling v. Lewis, 10 Johns. 297; Carter v. Beck, 40 Ala. 599; Shoutz v. Brown, 27 Pa. St. 123; Jones v. Wood, 16 Pa. St. 25. In the case of Houghtaling v. Lewis (supra), the court say: “Articles of agreement, for the conveyance of land, are, in their nature, executory, and the acceptance of a deed in pursuance thereof, is to be deemed, ;grima facie, an execution of the contract, and the agreement thereby becomes void and of no further effect. The presumption of law arising from the acceptance of a deed is, that it is an execution of the whole contract, and the rights and remedies of the parties, in relation to [451] snob, contract, are to be determined by snob deed, and tbe original'agreement becomes nail and void.” Tbis appears to me to be a sound and saintary rule, and con-iormable to tbe doctrine of tbe court in tbe case of House v. Barker (3 Johns. 506). Tbe chief justice, in that case, said “that be could not surmount tbe impediment of tbe deed, wbicli tbe plaintiff bad accepted from tbe defendant, and that be thought himself bound to look to that deed as tbe evidence of tbe agreement of tbe parties.” Tbe court gave, for tbe defendant, tbe following instruction : “That the covenant against incumbrance, implied by tbe words, 1 grant, bargain, and sell,’ in tbe •administratrix’s deed from tbe defendant to plaintiffs, does not bind tbe estate of C. P. Ball, deceased, and tbe •estate is not liable because of the breach of such covenant, or because of any incumbrance on tbe land conveyed by said deed.” By tbe terms of tbis deed tbe ■covenants implied by tbe words, grant, bargain, and ■sell, would ordinarily entitle plaintiffs to discharge a lien on the property conveyed, and recover tbe amount thereof from tbe covenantor. It seems, however, to have been conceded, all around, that tbis instruction was correct as to tbis administratrix deed; tbe concession, I apprehend, arising from a recognition of tbe principle, That there is no warranty in judicial or administration .sales. If tbis case was an action on tbe covenants of tbis deed, and passing by the question as to our jurisdiction, 1 would be inclined not to acquiesce in the concession, and to condemn tbe instruction quoted. Tbis is not like an ordinary sale by an administrator. It is based on special statutory proceeings, under sections 173, 178, Be vised Statutes, and is for the specific execution of the contract. A specific execution of tbe contract would be the execution of a general warranty deed, “such deed shall (would) be as effectual as if it bad been executed by the deceased.” Bev. Stat., sect. 178. Such proceeding is unlike the ordinary admin [452] istration sale, where the deed only conveys “all the-right, title, and interest, which the deceased had in the same.” Rev. Stat., sect. 169. As the cause is to he reversed, these suggestions are made that the plaintiffs-may consider further of their remedy. This action is not based on the deed, but is, in; effect, a claim before the probate court for money paid, which, it is alleged, should rightfully have been paid by the intestate. It cannot be maintained. The other judges concurring, the judgment is reversed.