Folliard v. Wallace , 2 Johns. 395 ( 1807 )

Kent, Ch. J.

The questions in this case principally respect the validity of the pleas. The declaration is correct, &nd states all that was requisite, in the first instance, to show a good and undisputed title conveyed to the defendant, and that he was bound to pay the money. He was to pay three months after being well satisfied, &c. and the award of the Onondaga commissioners ought to have satisfied him, until some lawful title appeared to controvert the one held under that decision. As that award was a public act, of which the defendant must be presumed to be conusant equally with the plaintiff, he was bound to take notice of it at his peril, and without further information from the plaintiff. (Cro. Ja. 390. 432.) It was then incumbent upon him, in order to avoid the obligation to pay, to state in his plea a lawful claim or title to the land prior to, and better than, the one conveyed to him by the plaintiff. Though the title derived from the plaintiff was to prove good and sufficient in law against all other claims, yet the covenant must be construed to mean lawful claims, in like manner as a covenant against the acts of all persons whomsoever, is understood to mean the acts of persons having lawful title, and not to extend to the acts of wrongdoers. So a general warranty is restrained to lawful interruption. (2 Saund. 178. and note 8. 3 Term, 584. 587. Greenly, &c. v. Wilcocks, ante, 4.) The law will never presume that the covenant applied to the wrongful claims of others, unless it be so expressed, because the law gives full protection against all such claims. But the first plea states only, that, Henry and his wife did claim title to the lot under a deed purporting to have been executed by the plaintiff’to one Nelson. It was not necessary for the defendant to have set forth the particulars of that title, foi‘ he was a stranger to it; but he ought, at least, to have alleged thát the claim of Henry and his wife was a lawful claim, and lawfully derived under the deed to Nelson, and that the title existed before or at the time of the deed to himself. This appears, from the course of the authorities and precedents, to be an indispensable averment. (Wotten v. Hele, 2 Saund, 177, and note 10. at p. 181, a. Foster v. Pierson, 4 Term, 617. Hodgson v. E. I. Company, 8 Term, 278.) Without such an averment the court cannot take notice of the claim, for it may be one altogether frivolous and without colour, and not maintained with sincerity. Nor will it do for the defendant to say he was not satisfied with his title, without showing some lawful incumbrance or claim existing against it. A simple allegation of dissatisfaction, without some good reason assigned for it, might be a mere pretext, and cannot be regarded. If the defendant were left at liberty to judge for himself when he was satisfied, it would totally destroy the obligation, and the agreement would be absolutely void. But here was a real obligation contracted, and the true and sound principle is laid down in Pothier, (Traite des Obligations, No. 48.) that if A. promises,to give something to B. in case he should judge it reasonable, it is not left to Ads choice to give it or not, since he is obliged to do so, in case it be reasonable. The, law in this case will determine for the defendant when he ought to be satisfied; and until he shows some lawful claim or title to countervail that which he derived from the plaintiff, and which has been confirmed by the award of the commissioners, the intendment of law is, that his title is complete, and he is consequently, bound to pay. The first plea of the defendant is, therefdre, bad.

The only circumstance that may be thought materially to distinguish the second and third pleas from the first, is the allegation that Henry and his wife, by virtue @f their claim under Nelson’s deed, keep the defendant and the heirs of Wells out of possession. But here is the same want of an averment of the lawfulness of the .claim of Henry and his wife, and for aught that appeal’s in the pleas, they may be mere wrongdoers in withholding the possession. The title of the defendant, as derived from the plaintiff, is to be deemed a lawful and valid title, for it has received the sanction of the commissioners, and the claim of Henry and his wife must be deemed frivolous and illegal, for it has never received any judicial support, and is not even alleged to be legal. Without, therefore, examining the merit of the subsequent pleadings, I am of opinion, that the first fault is in the bar, that the three pleas are equally bad, and that the plaintiff is entitled to judgment.

Spencer, J. and Yan Ness, J. concurred. Thompson, J. not having heard the argument, gave no opinion.

Judgment for the plaintiff.