Herryford v. Turner

Hough, J. It was alleged in the petition in this case, that, at a trustee’s sale made on the 5th day of December, 1872, by Thomas E. Burch, as trustee, the defendant, Turnei’, purchased certain real estate for the sum of $8,746.27; that, afterwards, on the 14th day of December, 1872, said Turner sold said real estate to plaintiff for $7,000 in cash, and certain real estate in Glasgow, Mo., estimated to be worth $2,000, which was conveyed to the defendant; that, at the time of the sale of said land by the defendant to the plaintiff, no deed had been executed by the trustee, Burch, to the defendant, and, at the special instance and request of the defendant, the plaintiff consenting thereto, said trustee made a conveyance directly to the plaintiff; that at the time of the purchase by the defendant, at the trustee’s sale, and when he sold to the plaintiff, the land so conveyed by the trustee was incumbered for taxes to the amount of $456.81, which the defendant knew ; that the defendant was legally bound to ]?ay off and discharge said incumbrances, which were upon the land at the date of his sale thereof to the plaintiff, but that he failed and refused to do so, and thereupon the plaintiff paid the same, and instituted the present action to recover from the defendant the amount so paid. The plaintiff had judgment in the court below, and the defendant has appealed. The averments of the petition sufficiently set forth the plaintiff’s case, as developed at the trial, and omitting all reference to the questions raised by the motion for a new trial, we will proceed to determine the sufficiency of the peti [298] tion, the defendant having moved to arrest the judgment for the reason that it did not state facts sufficient to constitute a cause of action. Is the defendant legally liable to the plaintiff, on the facts stated, for .the amount of the taxes paid by him ? It seems to be generally maintained by the authorities that upon an agreement for the sale of lands, in the absence of special stipulations to the contrary, the vendor is to be considered as contracting for a general warranty. Rucker v. Lowther, 6 Leigh 259 ; Steele v. Mitchell, Kentucky Decisions 47; Hedges v. Kerr, 4 B. Monroe 528; Andrews v. Word, 17 B. Mon. 520; Dwight v. Cutler, 3 Mich. 579. Mr. Rawle, in his work on covenants, remarks that it is well settled, both in this country and in England, that, while a contract for the sale of real estate is still executory by operation of law, and, without any agreement of the parties to that effect, the purchaser has a right to demand a title clear of defects and incumbrances. Rawle on Cov. 562 ; vide also Souter v. Drake, 5 Barn. & Adolph. 999; Doe v. Stanion, 1 Mees. & Welsh. 701; Burwell v. Jackson, 5 Selden 536; Shreck v. Pierce, 3 Clarke (Iowa) 360. Hence it is that a court of equity will not decree the specific performance of a contract when the title is bad or even doubtful. If an incumbrance exists which it was not agreed should enter into and form part of the consideration of the sale, the vendor must discharge it before he can-call for a completion of the sale. Rawle on Cov. 563. In the case before us, the contract of sale has been executed. Had the defendant, after receiving the consideration for the land, himself executed to the plaintiff a conveyance containing no covenants protecting him against the incumbrances in question, surely the present action could not be maintained. Having paid the purchase money and accepted a deed from the trustee, thereby waiving a deed from defendant with such covenants as he had a right to demand, the plaintiff cannot recover in the present action, in the absence of an express undertaking [299] on the part of the defendant to pay the taxes. No such undertaking was alleged, nor could it have been proven under the present petition. The motion in arrest should therefore have been sustained. The judgment will be reversed and the cause remanded for further proceedings in accordance with this opinion. All concur. Reversed.