McGuirk v. Connelly

Mr. Justice Adams delivered the opinion of the court. Counsel for appellant object that the contract was admitted in evidence, without explanation of the erasures mentioned in the preceding statement. The record shows that the contract was executed in duplicate, that both copies were produced on the trial and shown to the appellant, that he compared his copy with appellee’s, and that he admitted his signature to the contract and said, “ If they both correspond, they are right.” This disposes of the objection. It is next contended that appellee was unable to perform and did not perform his part of the contract. The only evidence of inability relied on by appellant’s counsel is the deed from appellee to Condon and the deed from Mary A. Zacharias, the owner of the tax title, and her husband, to appellant. The deed from Condon to Connelly is a sufficient answer to the prior deed from the latter to the former. As to the tax title, we think it clear from the terms of the contract that appellant purchased subject to the tax sale, or if a deed had issued, subject to the deed. The consideration was $700, payable, $200 October 1, 1893, $200 October 1, 1891, $200 October 1, 1895, with interest at six per cent per annum, semi-annually, “and such portion of the remaining hundred dollars as shall be left after redeeming from tax sale or obtaining deed, on July 1, 1893.” The language quoted shows that it was understood by the parties that there had been a sale of the premises for taxes, and that the agreement between them was that appellant should use as much as might be necessary of one hundred dollars of the purchase money to redeem from the tax sale, or obtain a deed on the sale, as he might see fit. By his contract he undertook either to redeem from the sale, or procure a deed, if the time for redemption had expired. Ho.ving so contracted, he can not be heard to claim that the tax sale, or the deed issued in pursuance of it, was an incumbrance. He contracted for a quit-claim deed, and the deed which Byrnes, on behalf of his client, tendered to him, is a sufficient quit-claim deed. It is true that he denied the tender, but it was a question for the jury and the court, who saw the witnesses and heard them testifying, to decide as between him and Byrnes, a disinterested witness, which was entitled to the greater credit. There are circumstances which tend to corroborate Byrnes. Appellant admitted that he was in Byrnes’ office February 7, 1899, when Byrnes testified he tendered the deed, and he did not deny that he offered Byrnes $50 if he would dismiss the suit. The deed which Brvnes says he tendered is not only dated, but acknowledged, January 21, 1899, more than two weeks before the suit was commenced, indicating that it was prepared and acknowledged for delivery or tender to appellant. Appellant did not contract for a warranty deed or even that appellee should furnish an abstract. He evidently assumed that appellee had some title or interest in the premises, and contracted merely for a quit-claim deed. In Baxter v. Aubrey, 41 Mich. 13, the court, Cooley, J., delivering the opinion, say: “We think, however, if the vendee accepts a contract in which the ownership of the vendor is assumed, and agrees to pay for the land without requiring _ the vendor to produce evidence of his title, the burden ‘ will be on him to show defects. The presumption will be that he satisfied himself respecting the title when he made his bargain.” As before stated, appellant purchased the land subject to the incumbrance of the tax sale, which incumbrance he undertook to remove, the consideration for this undertaking being appellee’s agreement that part of the purchase money might be used for that purpose. He can not, therefore, rely on the tax title incumbrance as against appellee’s claim. It is not claimed that the damages awarded are excessive. We are of opinion that, by the verdict of the jury and the judgment of the court, substantial justice has been done between the parties, and that there is no error in the instructions which would warrant a reversal of the judgment. Therefore the judgment will be affirmed.