Jones v. Gardner

'Where A. vly to 8. a c!ii>ed»h‘on toe iat May, covenanted to that day, soo of ""the chase-money ; that the cove-dependent,6 Mvery^of toe deed and toe tiie mmoney ranTacts?CUl" And where A. on the 1st jMatfy t8U, tendered to B. a deed of the farm, executed by A. and his wife, not acknowledged by the wife, and which did not embrace all the land of the farm; it was held that this -was not a performance of the covenant of A. A covenant to convey the titles means the legal estate in fee, free from all valid claims, liens or encumbrances whatever. '

THE plaintiff declared on an agreement in wilting, dated the 23d March, 1811, which stated that Jones had contracted with Gardner, “ to convey to him a farm of land situated in the town Qf Hinsdale, on which Samuel Gilbert now lives,” on the fob lowing terms, to wit, 1,820 dollars, to be paid as follows, to wit, 500 dollars on the first of May next, 300 dollars in two years thereafter, 300 dollars in three years, 300 dollars in four years, 300 dollars in five years, and 120 dollars in six years. Gardner was to have possession on the 1st of April then next; and whenever he received from Jones “ a good and sufficient deed in law *° * the title of the said farm of land with the appurtenances,” Gardner was to give to Jones a bond and mortgage to secure the whole of the purchase-money. And it was further a between the parties, that the party refusing to fulfil the contract should forfeit to the other the sum of 1,000 dollars, for the payment of which they mutually bound themselves; the plaintiff binding himself under that penalty to execute the deed to the defendant on the 1st iVia~j then next, if the plaintiff paid the 500 dollars. The cause was tried at the Columbia circuit, in December, 1811, before Mr. Justice Yates. The plaintiff gave in evidence a mortgage from Samuel Gilbert, dated the 9th May, 1801, to Robert Van Rensselaer, for 500 dollars, in which the farm was described by particular courses and distances, and as containing 109 acres. This mortgage was assigned to one Seymour, and by him, on the 5th of December, 1809, assigned to the plaintiff. The plaintiff also produced a mortgage from Samuel Gilbert to the plaintiff, for the same farm, dated the 5th May, 1808, for securing the payment of 1,306 dollars and 74 cents, in which mortgage the farm was particularly described by metes and bounds, and as “ containing 109 acres, more or less, all the said farm now in possession of the party of the first part.” The plaintiff produced a deed from the plaintiff and his wife, dated the 1st May, 1811, to the defendant for the farm, as described in the last-mentioned mortgage from Gilbert to the plaintiff, and as containing 111 acres, 2 rods and 7 perches of land, which deed contained full covenants, and was tendered in due form to the defendant, but was not acknowledged by the wife of the plaintiff. The plaintiff then offered to prove that this deed was drawn in conformity to the description contained in the mortgage, by the agreement of the parties, which was objected to, but the objection was overruled by the judge. Samuel Gilbert, who was sworn as a witness, testified that the farm in question wras leased from Van Rensselaer, and the boundaries described in the lease $ and that he had no other land than what was contained in the lease. He supposed he cultivated about 5 acres of land adjoining, not included in the boundaries of the lease, which left out at least half of the exterior fences, and some acres of land. It appeared that when the agreement was made, the plaintiff told the defendant that he did not know the west boundaries, but they were contained in the original lease, which was not, however, shown. It was proved, on the part of the defendant, that when Jones showed him the farm, he pointed out the fences as standing on |he boundary lines, and that the farm extended to them. It appeared that the defendant took possession of the farm in Aprils 2811 A verdict was taken for the plaintiff, for 524 dollars, by consent, subject to the opinion of the court on a case containing the above facts.