Van Eps v. Mayor of Schenectady , 12 Johns. 436 ( 1815 )

Yates, J.,

delivered the opinion of the court. In the certificate or Contract executed by the treasurer of the corporation, and countersigned by the purchaser, the lot" sold is mentioned, and that upon the purchaser’s making the payments," particularly stated, a deed will he executed for it by the defendants'Xo, the purchaser; and, in this instance, to the plaintiff, hisheirsand assigns, for ever,. This, certainly, according to the'terms used, does not create an. obligation on the part of the corporation to execute a deed containing the covenants insisted on by the plaintiff. " The deed stated in the case, and offered .to -be executed by the mayor, was á sufficient compliance with the terms of the contract, to exonerate the defendants; and, unless other circumstances are disclosed' by the evidence, to justify the plaintiff in his demand to have the covenant required by him inserted, he is still held by the contract, and obliged to accept of the conveyance offered to him. By covenanting to execute a deed,; no greater duty or obligation can be intended than to execute a conveyance or assurance of the property, which triay be good and perfect, without warranty, or personal covenants. Its meaning, in the contract before us, is clear ° .... , and decisive, and will not, even by implication, admit of a more extended construction or definition.

In the case of Frost and others v. Raymond, (2 Caines' Rep. 191.,) it is stated, in the opinion of the court, to be a settled position, that an estate in fee may be created by the usual and solemn forms of conveyance, without warranty, express or implied; and that a conveyance in fee does not, ipso facto, imply a warranty; that if it did, our books would be inconsistent and unintelligible on the subject. The case of Nixon v. Hyserott (5 Johns. Rep. 58.) supports the same principle, and shows, that a general power to execute a deed does not authorize the giving it with the usual covenants of warranty, &c. It is evident, then, that where it is contracted to execute a deed, as in this case, to the plaintiff, his heirs and assigns, for ever, no covenant of any description can be intended, either by implicatian or otherwise; nor will the circumstance of the sale being at auction, vary the result. It must entirely^depend on the contract made at the time, which, in this case, is conclusive against the insertion of the covenant required by the plaintiff, as appears from the conditions or terms of sale previously made known by the treasurer, and the subsequent memorandum or ¡certificate under the signature of the parties.

It cannot be pretended that this was one entire contract for all the lots. They were put up at auction, separately, and a certificate given for each lot, which was countersigned by the purchaser, so that the corporation were obliged, if required, to give separate deeds. The offer, by the mayor, to give one deed or quit claim for all the lots purchased by the plaintiff, will not give such a character to the transaction as to make it an entire contract, and thus authorize a relinquishment, on the part of the plaintiff, of the purchase of the whole thirty-three lots, because a part of them might have been held adversely at the time of sale. The fact that each lot was separately contracted for, appears so conclusively from the evidence in the case, as, in my view, to put the right of rescinding, on the ground that the purchase of all those lots was one entire contract, wholly out of the question ; and, therefore, the existence of an adverse possession of a part of the lots could not affect the contracts for the residue.

From the facts disclosed bythe case, it does appear that lo.tij Nos. 11, 12, and -13, were held adversely to the title of the defien(JantS, at the time th„e plaintiff contracted to purchase them, ancj continued So until the payments for them were made, which would, of course, have rendered a deed for these lots (if it had been executed) wholly inoperative. The plaintiff ought, consequently, to recover back the amount of the consideration money paid for them. The verdict must, therefore, be reduced to 834 dollars and 65 cents, according to the stipulations in the' case, for which'the plaintiff must have judgment.

Judgment for the plaintiff, accordingly»