Tindall v. Den ex dem. Conover

Carpenter, J. delivered the opinion of the court. It was not disputed on the argument, but that the language of the covenant, “to deliver a good and sufficient deed with covenants of warranty,” related to something more than the form of the instrument; that it related to the title, and imported an understanding to convey a good title. Assuming so much, it was argued by the counsel of the plaintiff below, that it was such an acknowledgment of the title of the vendor, by the vendee, that upon breach of the agreement, and ejectment brought for the possession, the vendee was estopped from denying the plaintiff’s title. The counsel of the defendant below, (who is the plaintiff in error,) on the other hand insisted that such an estoppel can only arise where the vendee has acquired the possession by virtue of the contract; and not to the case of a contract to purchase by one previously in possession. That in case of possession acquired by means of a contract to purchase, if the vendee refuses to complete the contract he must relinquish the possession to the vendor from whom he received it; and upon ejectment brought, cannot deny the vendor’s title, who may in such case recover upon the contract without further evidence of title. He insisted that this principle only applies to those cases where possession has been acquired by such recognition of the vendor’s title. Whatever may be the limits of the rule, it has been held and it seems .to me justly, that repeated applications to purchase by the defendant to the lessor of the plaintiff, affords a presumption that the defendant came in or held under him. Jackson v. Croy, 12 Johnson 427. This if it goes no further, disposes of the first exception as to the refusal of the judge to non-suit. The contract to take a deed at the end of the year and to pay interest in the mean time, at any rate, formed a prima facie case and entitled the plaintiff to recover unless rebutted. [655] This brings us to the chief inquiry, whether the defendant was concluded by this contract from denying the title in an action to recover the possession. The defendant who denies that he was so concluded, offered to show that he was previously in possession by proof that he held under a lease from one Gillingham from 1st April 1835 for seven years, ending 1st April 1842, five days prior to the contract. It seems to me that holding the possession under the contract is equivalent to an actual entry by virtue of the contract: that the keeping the possession is equivalent to obtaining the possession. That it is within the rule when a party has kept as well as obtained the possession of land, which otherwise he would not have had, by means of an agreement to purchase, and that he is equally estopped from setting forth anything in opposition to its terms or intent in a suit brought to recover such possession. In this case the contract to purchase was made on the 6th April, 1842. The defendant agreed to receive, one year afterwards, a deed with covenants of warranty; to take at the end of the year a title from the lessor of the plaintiff, and to pay interest upon the price of land from the date of the contract, or rather from the first day of April. He contracted to take the grain growing on the ground as well the crop at the date of the contract, as also that which would be at the time of executing the deed, which was “ to pass ” to him by virtue of the contract. It seems to me that this was an agreement to hold for that year under the plaintiff. Whatever might have been the previous rights of the defendant, or those under whom he may previously have held, with his eyes open, he enters into this engagement to hold for one year under the plaintiff, and at the end of the year to accept a title from him. The plaintiff for one year was prevented from asserting any right he may have had to the possession. Under the contract and in consequence thereof, he consented to the occupation of the premises by the purchaser, from the time of making the contract until the time when the deed was to be delivered. Under these circumstances, if the purchaser refused to complete the contract, I hold that he was bound to deliver up the possession. I concur in affirming the judgment of the Supreme Court. Judgment affirmed. Cited in Den v. Baldwin, 1 Zab. 405; Lounsberry v. Locander, 10 C. E. Gr. 557.