Townsend v. Ward

Ellsworth, J.

On the 10th day of February, 1854, John King and the petitioner entered into articles of agreement, whereby King covenanted to convey to the petitioner a farm of land, lying in the town of Old Saybrook. As a condition precedent to the conveyance, the petitioner was to convey to King, by a deed with covenants, certain real estate lying in the city of Brooklyn, which was under a mortgage for $512,000 to the Howard Insurance Company; which incumbrance was to be excepted in the covenants. The deed was to be delivered to King, before the first day of May thereafter, at his office in New York, and, in case of his absence, to his brother, as his representative. Each party was to have immediate possession of his purchase, after the date of the articles; and each accordingly took immediate possession. The petitioner delivered his deed, executed by himself and wife, at the place named, within the time stipulated, to the brother of King ; and no objection was then made, nor has there been at any time since, to the terms of the deed, except as hereinafter mentioned.

On the 7th day of November following, the attorney of King returned the deed to the petitioner, informing him that King would not accept it, and would not execute a deed of the land in Saybrook. King, and his creditor Ward, who stands in his place, (having no greater rights than King himself, since he attached the land with notice,) now claim that the deed was not such an one as the articles of agreement *615 required, inasmuch as it provides in terms that King shall pay the mortgage of $12,000, in the place of the petitioner. King insists that on this account he can, even after the expiration of more than six months from the day the deed was delivered, repudiate and reject it.

On the other hand, the petitioner insists that no just objection can be made to the clause referred to, because the duty of King to pay that debt would be implied by law, and that it was well understood by the parties that King should pay it; and at all events, that the objection comes quite too late, inasmuch as the deed must be considered, as accepted by King, it having been, as well as the land itself, kept without complaint for so long a time.

We think the case may well be decided for the petitioner on the last mentioned ground, without deciding definitely the other point. It is said however in relation to the first point, that, after the purchase, King was, of course, by implication of law, to provide for the mortgage to the Insurance Company, whenever the company required it to be paid ; especially as he had covenanted in the articles to pay interest on that debt, from the time he should come into the receipt of the rents and profits. In Thompson v. Thompson, 4 Ohio S. R., 333, it is decided “ to be a well settled principle, that the purchaser of an incumbered estate, if he agree to take it subject to the incumbrance, and an abatement is made in the price on that account, is bound to indemnify his grantor against the incumbrance, whether he expressly promises to that effect or not, it being implied from the nature of the transaction.” To the same effect see Tweddell v. Tweddell, 2 Brown Cha. 154, Woods v. Huntingford, 3 Vez. Jr., 128, Waring v. Ward, 7 id., 337 and Earl of Oxford v. Lady Rodney, 14 id., 423. This legal inference seems to be proper enough, inasmuch as the property has gone out of the control of the mortgagor, and the incumbrance was itself deducted from the price agreed to be paid.

This clause is now, for the first time, objected to. At the most it was at first a matter of minor importance, and the objection could have been avoided at the time if it had been *616 made, by a deed in which the clause should be omitted. The deed, as it was, certainly conferred a perfect title on King, which was all, we must think, that he expected or desired from the petitioner. It was not until a long time after the first of May, before which time the error, if it was an error, could have been corrected, and when King had come under other advisers and influences, that.any thing was heard of the deed being in any respect unsatisfactory. Besides, if King intended to repudiate the articles for this cause and refuse to perform on his part, he should have delivered up to the petitioner the possession of the land in Brooklyn, which he has never done or offered to do; but on the other hand, certainly for more than six months, has continued to hold the property under his purchase, advertising to sell it as his own, referring to the very deed in question for boundaries and as a link or part of his title under which he claimed to be the owner. Having the entire ownership, he has done with the property just what any other man would do with his own—altered or changed it according to his wishes, projects or taste. Nor had the petitioner any power to interfere and arrest his proceedings, had he wished to do it. In fact, each of the parties had taken possession of his purchase and was enjoying it without reserve or hesitation. After this, we think it would be unreasonable and unprecedented, to allow the respondents to say that the petitioner’s deed, which was delivered, within the time agreed, and kept without objection, was not accepted in fulfillment of the articles of agreement.

The declaration of King, made to his attorney in some interview between them, with regard to the deed, has nothing of the character of res gestee, and was properly rejected as inadmissible testimony.

There is no error in the judgment complained of.

In this opinion the other judges concurred.

Judgment affirmed.