Atkins v. Bahrett , 19 Barb. 639 ( 1855 )

By the Court,

Brown, J.

The question determined at the special term and now to be re-examined on appeal, arises upon the construction of the defendant’s covenant to convey; whether it is sufficiently executed by the delivery of a deed with the usual covenant of warranty so as to pass whatever estate the grantor had in the lands, or whether the deed should not also be an operative conveyance, and pass to the grantee a perfect and complete title to the lands therein described. This precise question has been much litigated, and a great variety of cases may be found in the books, in which it has in various forms engaged the attention of the courts. It has, as was to be expected, given rise to conflicting decisions, but may now be regarded as definitely settled by the authorities to which I shall briefly refer.

The cases of Gazley v. Price, (16 John. 267,) and Parker v. Parmele, (20 John. 130,) are authorites in favor of the proposition that such a covenant relates merely to a conveyance of such interest and title as the covenanter has in the lands, and not to a valid and substantial title. In the last named case Mr. Justice Spencer says that when he delivered the opinion in Gazley v. Price he supposed he not only expressed the opinion of his brethren but had also given effect to the spirit of all the antecedent cases on the subject. Yet it is impossible to say now that the decision is not in conflict with Clute v. Robison, in the court of errors, (2 John. 595 ;) Judson v. Wass, (11 id. 525 ;) and Van Eps v. The Corporation of Schenectady, (12 id. 442,) as they are reported. When this same question re-appeared in Carpenter v. Bailey, (17 Wend. 244,) the discrepancy to which I refer was noticed by Oh. Justice Nelson. The cases of Gazley v. Price, and Parker v. Parmele, (notwithstanding the observation that it was not designed to interfere with any previous decisions,) were in effect overruled, for it was held that a covenant to procure from a third person a good and sufficient deed of conveyance in fee simple of certain lands imposed an obligation to procure a deed which would be operative and effectual to convey the title. Mr. Justice Bronson dissented, saying it was impossible to distinguish the case from Gazley v. Price, and Parker v. Parmele. The authority of these cases is again questioned in Fletcher v. Button, (4 Com. 396,) where Judge Buggies remarks that “ the reasoning in these cases falls short of showing that a covenant to execute a good and sufficient deed of conveyance is satisfied by a' deed which conveys nothing.” In Pomeroy v. Drury, (14 Barb. 418,) the late Mr. Justice Barculo declares it “ safe to say that Gazley v. Price and Parker v. Parmele are no longer authorities for holding that a covenant to convey lands by warranty deed on a sale, refers only to the form and sufficiency of the deed, and not to the title conveyed.” After an elaborate and careful examination of the authorities he arrives at the conclusion that “ when a man buys a piece of land and contracts for a conveyance, in general terms, the presumption is that he expects the title, and the grantor should be required to give him a perfect title!” He quotes for authority Hunter v. O ’Neil, (12 Ala. R. 37 ;) and Tharin v. Ficklin, decided in the court of appeals of South Carolina, (2 Rich. R. 361.) The rule as stated by him gives effect to the true intention of the parties to such contracts, and its justice, morality and good sense must he apparent to all. When applied to the case under consideration it is decisive against the defendant.

[Orange General Term, April 3, 1855.

Brown, S. B. Strong and Rockwell, Justices.]

The judgment is affirmed.