Finley v. Simpson

If a deed inter partes, whereby an estate is conveyed to the grantee, and the estate conveyed is accepted by the grantee, although only signed and sealed by the grantor, it is the deed of both partios, and the grantee is bound by the covenants therein contained on his part, and can be held in ail action of covenant for the breach of them.

This was an action of covenant, brought by the plaintiff against the defendant, and. was tried, at the May term of the Essex Circuit Court, before the Chief Justice. The declaration sets out, in substance, that on the eleventh-day of May, 1835, the plaintiff was seized of a certain lot of land, situate in Newark; and being indebted to one Elisha Whitaker in the sum of two hundred and thirteen dollars and seventy-five cents, gave to him his bond therefor, dated May 1, 1835, payable in four years; and that on the same day he gave a mortgage on the said land, and continued in the seizin of said lot subject to said mortgage, until the execution of the indenture next mentioned. And the declaration then proceeds as follows : “ And whereas, the said plaintiff being so seized, afterwards, and before the payment of the said sum of two hundred and thirteen dollars and seventy-five cents, or any part thereof, to wit, on the ninth day. of April, in the year 1836, by a certain other indenture of bargain and sale, then and there made between the said plaintiff, of the one part, and the said defendant, of the other part, he, the said plaintiff, for and in consideration of a certain sum of money, to wit, the sum of three hundred and twenty-six dollars and twenty-five cents, therefor, then and there paid by the defendant to the plaintiff) and the further sum of two hundred and thirteen dollars and seventy-five cents (the principal sum of the said bond and mortgage) to be paid by the defendant, with interest, as herein after mentioned, arimunting in the whole to the sum of five hundred and forty dollars, did bargain and sell to the defendant the said lot of land and premises, with the appurtenances, in and by which said last mentioned indenture it was then and there declared, covenanted, and agreed by the defendant, that the said lot of land and premises, with the appurtenances; were on that occasion conveyed by the plaintiff to the defendant, subject to the said mortgage; and the said mortgage, or the principal sum thereof, was computed as so much of the said sum of five hundred and forty dollars consideration money, and that the defendant would pay the said principal sum of the said mortgage, with the interest which should thereafter accrue thereon: one part of which said indenture, sealed with the seal of the plaintiff, was then and there delivered by the plaintiff to the defendant, and then and there accepted and received by the defendant; by virtue of which said bargain, and by force of the statute for transferring uses into possession, the defendant then and there became and was seized in his demesne as of fee of and in the said lot of land and premises, with the appurtenances. And the plaintiff then avers, that the defendant did not pay the said principal sum of the said mortgage, and that the plaintiff was obliged and did pay the same, and that the defendant has not kept his covenant. The defendant pleaded “ non est factum ” as to the said indenture last mentioned. The plaintiff, on the trial, offered in evidence the record of the indenture mentioned in his declaration, which purported to be made between the plaintiff, of the one part, and the defendant, of the other part, and which was recorded in book G 4 of deeds for Essex county, in pages 482, &o., and was an ordinary indenture of bargain and sale in fee simple, with the usual covenants and warranty, conveying to the defendant, for the consideration, as expressed, of five hundred and forty dollars, a certain lot of laud therein described : and, after- the description of the land, contained these words : “ The above premises are conveyed subject to a certain mortgage thereon, given by the said William M. Simpson to the said Elisha Whitaker, for two hundred and thirteen dollars and seventy-five cents, dated May 11th, 1835, which mortgage, or the principal sum thereof, is computed as so much of the above consideration money, and which, with the interest thereon hereafter accruing, the said Alexander Finley assumes to pay;” which deed was signed and sealed by the plaintiff, but not by the defendant. The defendant, under his plea of “ non cst fadwm,” objected to the admission of this indenture in evidence as his deed, or as containing any covenant of the defendant, and raised the question, whether the plaintiff could sustain his action upon it. The court, without deciding the question, admitted the said deed in evidence. The plaintiff then proved his own seizin of the land, and the giving of the said bond and mortgage, as set out in his declaration ; also, that the defendant accepted the said deed, and became seized and possessed of the said property under it; and that the defendant repeatedly, by letters produced and proven on the trial, promised to pay to the plaintiff the amount of the said bond and mortgage. The plaintiff also proved that the defendant, having neglected to pay the said bond and mortgage when they became due, the plaintiff was obliged, and did pay the same to the holder thereof. The plaintiff having rested, the defendant moved a nonsuit. The court overruled the motion, and directed a verdict to be taken for the plaintiff, subject to the opinion of the Supreme Court on the question of the admissibility of the said deed iii evidence, as containing the covenant of the defendant, as alleged by the plaintiff, and suggested that the defendant should be at liberty to enter a rule to show cause, &o., at the next term of said court as of course, to which both parties assented.