Foster v. Jared

Treat, C. J. This was an action of assumpsit, brought by Joseph J. Jared against Hiram Foster. The declara,tion was on a promissory note, dated November 18th, 1848, for $100, payable in twelve months, made by the defendant to William Jared, and assigned by the latter to the plaintiff. The defendant pleaded, first, non-assumpsit: and second, failure of consideration in this; that William Jared, at the date of the note, sold a tract of land to the defendant, for the price of four hundred dollars, one-fourth of which was paid in hand, and the residue was to be paid in three equal installments, to secure the payment of which, the defendant made three promissory notes, the note sued on being for the first installment; that, at the same time, Jared executed a title bond by which he agreed to execute and deliver to the defendant, a good and sufficient warrantees deed for the land, on the payment of the notes at maturity; that the bond provided, that, if the defendant should fail to pay the notes, or either of them, at maturity, or within sixty days thereafter, Jared might declare the contract void, and defendant should forfeit all previous payments; that Jared then had the full legal title to the land, but afterwards, on the 80th of January, 1850, without declaring the contract void, for the consideration of five hundred dollars, by deed of that date, containing no reservation or condition, he conveyed the land to the plaintiff, whereby he voluntarily and wilfully put it out of his power to perform the condition of the bond, by reason whereof the consideration of the note had wholly failed, and of all which the plaintiff had notice before the note was assigned. The Court sustained a demurrer to this plea, and then heard the issue of fact, and rendered a judgment in favor of the plaintiff, for the amount due on the note. The notes and title bond are but parts of one entire contract. Bailey v. Cromwell, 3 Scam., 71; Duncan v. Charles, 4 ibid, 561; Davis v. McVickers, 11 Illinois, 327. The true consideration of the notes, is the estate agreed to be conveyed. Tyler v. Young, 2 Scam., 444; Mason v. Wait, 4 ibid, 127; Gregory v. Scott, ibid, 392; Davies v. McVickers, supra. But the conveyance of the land, and the payment of the note in question, are not concurrent acts. The payment of the note is to precede the conveyance. The vendor is not bound to execute a conveyance until all of the notes are paid. The doctrine, that in the case of dependent covenants, neither party can recover unless he has fully performed or offered to perform, on his part, has, therefore, no application to this case. The defendant'cannot put the vendor in default, until he has paid, or offered to pay, the entire purchase money. He undertook to pay the two first installments, before he was to receive a conveyance. He chose, as respects this portion of the consideration, to rely on the covenants of the vendor to compel the execution of a deed. It is no excuse, that the latter has now no existing capacity to make a good title. It will be enough, if he has the title when the defendant has the right to demand a conveyance. He may acquire a perfect title before he can be called on to convey. In Green v. Green, 9 Cowen, 44, where the payment of the purchase money was to precede the conveyance, it was held to he no breach of the covenant to convey, that the vendor never had any title to the land. The cases of Robb v. Montgomery, 20 Johnson, 15, and Champion v. White, 5 Cowen, 509, assert the same doctrine. And the same principle is recognized in Gregory v. Scott, and Duncan v. Charles, supra. The fact that the vendor had title when the contract was made, and that he has since transferred it to the plaintiff, makes no difference in principle. He may be re-invested with the title, before he is put in default by the defendant. If a vendor has title when he is bound to convey, the purchaser has no cause to complain. It is a matter of no importance, whether he then acquires the title for the first time, or whether he obtains it by a re-conveyance from a party to whom he once transferred it. The case of Sage v. Ranney, 2, Wendell, 532, is an authority directly in point. The Court there held, on a demurrer to the declaration, in an action of covenant for not conveying a lot of land, which the vendor had agreed to convey when the purchaser should pay a certain note, that an offer of payment and a demand of a deed should be averred; and that the conveyance of the lot to a third person, formed no excuse for not making the tender and demand. The Court said: “and though the defendant had divested himself of the title, yet had an offer of payment and demand been made, he might have been re-vested with the title, so as to have fulfilled his contract.” The defendant is not now in a position to take advantage of a want of title in the vendor. He must first be ready to perform the contract on his part. By tendering the balance of the purchase money, he will have the right to insist upon a conveyance, and if the vendor cannot then make a good title, the contract may be rescinded. The facts stated in the plea, do not show a rescisión of the contract by the vendor. The plea expressly alleges, that the conveyance was made without declaring the contract void. The assignment of the note shows that he did not elect to rescind the contract. He could not put an end to the contract, and at the same time claim any benefit from the notes. The forfeiture provided for in the bond did not extend to the notes. It only related to payments actually made. It is contended, that the judgment is in debt, and must, therefore, be reversed. The record, after stating a" hearing of the cause by the Court, proceeds : “it is considered by the Court, that the said plaintiff have and recover of the said defendant herein, the sum of one hundred and eight dollars and fifty cents debt, together with bis- costs in this cause, by him expended, and may have execution therefor.”1 This is not technically a judgment in debt. The word debt, does not of itself make a judgment in debt, ■ without it, the entry would have none of the distinctive features of a judgment in debt, and there would be no pretence for insisting that it was not a good judgment in assumpsit. The word must be considered as surplusage, or understood as used for the purpose of distinguishing the amount found due on the note, from the costs of the plaintiff which are embraced in the judgment. The judgment is affirmed. Judgment affirmed^ --