Van Benthuysen v. Crapser , 8 Johns. 257 ( 1811 )

Per Curiam.

It does not seem to be requisite to determine whether the covenants between the parties were or were not independent, because, admitting them to have been independent, the question still arises whether the defendant is not discharged from his covenant by the refusal and inability of the plaintiffs to convey upon request. A party is not to continue always bound by a single, independent covenant. He may be discharged by the default of the other party. To understand the sense of the contract, we .must look at the whole instrument. The tender of a deed by the plaintiffs, in 1809, did not help them, provided the defendant had been already discharged from the contract.

This tender was nearly ten years after the date of the covenant, and the case states, that about seven years before the trial, and which must have been in the year 1803, and nearly six years before the tender, the defendant demanded a deed of one of the plaintiffs, who replied, that it was not in the power of the plaintiffs to give a deed, as the land was covered by a mortgage. This refusal to convey upon request, and on the ground of inability to convey a good title, was a default which the defendant might avail himself of, and which he has not waived by any subsequent act. No tender of payment was shown at the time of this request, nor was this necessary, for the plaintiffs did not rest the refusal upon that ground, but on their inability to perform the contract, and such being the fact, a tender would have been useless. At the time of the execution of the covenant, and for ten years afterwards, the lands were encumbered by a heavy mortgage, and the plaintiffs were unable to convey a good title, as their covenant undoubtedly purported. Is not such refusal and inability a valid defence ? The defendant was not bound to accept of the deed when the plaintiffs tendered one nearly six years afterwards, unless he was to remain perpetually liable, and the plaintiffs had their whole life-time to perform their covenant. This would be a hard and unreasonable construction, and against established principles. In Legate v. Hockwood, (2 Chan. Cas. 5) and which was as early as the reign of Charles II. the lord chancellor declared, that if a man buys land, and the seller will not make an. assurance, when reasonably demanded, he shall lose the bargain, for the party ought not to be perpetually bound, without having a performance. And in the late case of Thompson v. Miles, (1 Esp. N. P. 184.) Lord Kenyon advanced the same doctrine, that if a party sells an estate, and cannot make a title when called upon for it, the defendant may set up against the plaintiff that want of title. The inability and refusal enables the buyer, as he says in another place, (2 Esp. N. P. 640.) to consider the contract at an end. After a continued neglect and inability on the part of the plaintiff, for six years, subsequent to a request and refusal to convey, it is not probable that a court of equity would interfere and decree a performance, (l Fonbl. 384. note e.) The general principle which has been mentioned, is recognised equally at law and in equity. Judgment must therefore be rendered for the defendant.