Emerick v. Hackett

Real Property — Option of Purchase Without Provision as to Covenants or Form of Deed — Vendor Only Bound to Deliver Deed Sufficient to Pass Title. Where an option of purchase in a written lease of real property contains no provision for any covenants, or as to the form of the deed, upon the privilege being availed of, the vendor is only hound to deliver a deed sufficient in law to pass the title. A judgment, therefore, in an action for the specific performance of such contract, requiring the defendant to convey the property by a “warranty deed,” is erroneous, but where such property was free from any liens or incumbrances at the time of the making of the lease, it is proper to direct the defendant to convey it free from any such.

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 18, 1907, affirming a judgment in favor of plaintiff entered upon a decision of the Oswego County Court at a Trial Term without a jury. This action was brought to compel specific performance of an option of purchase contained in a written lease of a farm theretofore entered into by plaintiff’s assignor as lessee and the defendant as lessor, and resulted in a judgment directing the defendant to specifically perform such option and convey and transfer by warranty deed the farm in question free of any and all incumbrance, mortgage or lien, on the tender to her or to her attorney of a certain sum of money. The judgment entered and directed by the County Court is erroneous, for the reason that it requires the defendant to execute a deed containing covenants of warranty. (L. 1896, ch. 547, §§ 210, 216; Nixon v. Hyserott, 5 Johns. 58; Van Eps v. Mayor, 12 Johns. 436; Ketchum v. Everston, 13 Johns. 359.) The provisions of the findings of the trial court and judgment, and particularly as to the form of deed to he given to the plaintiff by defendant, were proper and necessary to the fulfillment of the rights of the plaintiff as established by the decision herein. (Richards v. Edick, 17 Barb. 260; Waring v. Ayres, 40 N. Y. 350; Lawrence v. S. L. Ry. Co., 36 Hun, 467; Brinkerhoff v. Olp, 35 Barb. 27; Butterfield v. Cooper, 6 Cow. 481; Barwell v. Jackson, 9 N. Y. 535; Lazarus v. Heilman, 11 Abb. [N. C.] 93; Story v. Canger, 36 N. Y. 673; Moore v. Williams, 115 N. Y. 586; Bostwick v. Beach, 103 N. Y. 421.)