Bowen v. Vickers , 2 N.J. Eq. 520 ( 1839 )

The Chancellor.

There is but one question in this cause proper to be discussed and settled at this time. That relates to the true construction of the agreement between the complainant and. David Vickers, entered intoon the 19th of January, 1836.

Mr. Vickers, who is a wholesale grocer in the city of Philadelphia, sold goods in the year 1833 to Federal Champion, to the amount of four thousand five hundred dollars. Champion became embarrassed in his circumstances, and the complainant, who is charged with being interested in the business, (but whether he was so in reality or not does not appear, and is not material here,) agreed to compound this debt of Champion by securing to Mr. Vickers fifty per cent, of his claim. This arrangement was carried into effect as proposed, and the security was given, payable in eighteen months. On this settlement Champion gave to Mr. Vickers his own note for fifteen hundred dollars, secured by the complainant and one Daniel Frazier, and the complainant and Champion made their joint note to Mr. Vickers for the further sum of seven hundred and one dollars. While these new notes were running, and before they came to maturity, the complainant made another agreement with Vickers, by which Vickers was to give up the said notes upon receiving from the complainant a note for five hundred dollars, and a deed for certain lands. The bill seeks to compel on the part of Vickers a specific performance of this last agreement. The defendant resists it upon the ground, that after examination he has discovered that the complainant has no title to the lands which he agrees to convey. The complainant has tendered to the defendant a deed for the lands without any personal covenants except as to his own acts, and contends that by the terms of the contract he made no stipulation for a good title, and that the defendant must fulfil it whether he can show a title or not. This raises the question upon the terms of the agreement. The words used in the agreement are, “ The said Bowen promises to make to the said David Vickers a deed for the following lands,” ócc.

The complainant’s counsel has relied in support of his proposition that he made no stipulation as to title, much on the case of Van Epps v. The Corporation of Schenectady, in 12 Johns. 436. That was an action at law by the vendee, to recover back the consideration money which he had paid on the purchase of a number of lots, on an agreement similar to the present on the part of the defendants, to give the plaintiff a deed for the same. Under that agreement the defendants tendered him a quit-claim deed, which the plaintiff refused to take, insisting that he was entitled toa deed with the usual covenants, and brought his action to recover back his money. It will be observed, this was not a dispute about title, but about the kind of deed the plaintiff held a right to demand under his contract. The court decided, that an agreement to execute a deed was complied with by conveying the estate without personal covenants or warranty, and refused to give judgment for the money. It was said that the estate would pass by this deed, and if it was intended to require any personal covenants, they should bo mentioned. Do the court mean to say, that if it should turn out that the defendants had no title to the lots, the plaintiff could not recover the consideration money 1— They do not, but on the contrary, it appeared in that very case, that the defendants, as to three of the lots, had no title, and the plaintiff had judgment pro tanto. Technically speaking, a stipulation to give a deed, does not necessarily imply that it must contain all or any of the usual covenants, though it may imply a title in the grantors. The case of Ketchum v. Evertson, in 13 Johns. 363, was also cited. That case is the same with the one just referred to, and is based upon it. It has reference only to the form of the deed. Judge Spencer, in delivering the opinion of the court, proceeds on that ground alone. He says, “ a deed does not ex vi termini, mean a deed with covenants of warranty, but only an instrument with apt terms conveying the property sold. In Barrow v. Bispham, 6 Halsted, 119, it is said that the words “good and sufficient deed,” do not mean a good title, unless there is something in the agreement or attendant circumstances to show that the parties intended a good title should be given. That was a contract made by the plaintiff to sell the defendant all his right to the defendant’s own property, which he had acquired under a sale of lands for direct taxes. The object of the purchaser was to remove out of the way a pretended claim on his property. The contract was no longer executory, for the deed had been executed more than eight years, and accepted by the defendant. The deed as drawn conveyed only the plaintiff’s right, without any covenants whatever. The court could have no difficulty in such a case in believing that the parties never intended to require a perfect title at the hands of the plaintiff: all they designed was, that he should pass over all the right he had. These are ail cases at law.

The true rule in this court on this subject, is well expressed by chancellor Walworth, in Bates v. Delavan, 5 Paige, 307. He says, “As a general rule, a court of equity will not decree the specific performance of a contract of sale, if the vendor cannot make a good title, although the contract has made no provision as to covenants of warranty to be inserted in the conveyance. An exception, however, to that rule exists, where by the contract of sale the vendee expressly assumes the risk as to the title, or agrees to take such a title as the vendor is able to give.” The power of the court in compelling a specific performance is always discretionary, and must be exercised in such way as shall best advance the truth and justice of the case. L believe, from an examination of this agreement and the circumstances attending the w hole case, that the complainant was to convey a legal title to the defendant. This was the plain intent of the parties. Can it be believed for one moment that the defendant, who had already relinquished one half of his debt on obtaining security for the remainder, intended by this agreement to cancel this remainder except five hundred dollars, by accepting a deed from the complainant for lands whether he had a title or not? If such had been the meaning, it should, and I think would, have been expressed in very different language. I do not mean to say that a specific performance of a contract will not be decreed in any case where the complainant has no title. It will be, provided it appear that it was the clear intention of the parties that the purchaser should take the risk on himself, and was to receive only a conveyance of such interest as the vendor had. This intent must, however, be plain and’ explicit, not got at by a forced or technical construction of words. The whole instrument must be looked at, as well as the scope and object of the negociation. The vice-chancellor, in the case of Jane Hunter on petition, &c. 1 Edwards, 6, held that the words in the covenant of a lease authorizing the lessee “ to purchase” by paying a certain sum, meant the whole title free from incumbrances. It is a bold request to make of a court of equity, to enforce specifically an agreement of sale, when the defendant stands before the court alleging, and offering to prove, that the plaintiff has no title for the lands which he proposes to convey. Even if the construction of the agreement was doubtful, that doubt should be resolved in favor of the defendant.

I shall pursue in this case the well settled practice of the court, by referring it to a master to ascertain the title of the complainant to the property, and the incumbrances, if any, upon the same.

Order accordingly.