Ketchum & Sweet v. Evertson , 13 Johns. 359 ( 1816 )

Spencer, J.,

delivered the opinion of the court, The plaintiffs seek-to recover of the defendant 700 dollars, paid upon á contract for the conveyance of a farmand it is.contended, that the defendant has violated the contract in several respects : 1st, In this, that the deed executed by the defendant contains no covenants of warranty2d. That the defendants wife has not executed and acknowledged, the deed; and, 3d. That the boundaries' specified in the deed do. not 'embi’ace all the lands constituting the farm at the Four Corners. ’ .

: It appears, that the defendant executed a deed of the lands, included in a mortgage given by Haight to Rogers & Rambert, which’ deed was ready to- be delivered at the office of Rudd Evertson, in Poughkeepsie, on the first'day of May, 1811; but the plaintiffs did' not then, or' on"any subsequent day, receive the same, and perform the covenants which were simultaneously to be obsei’ved; the plaintiffs insisting on the preceding objections. It also appeal’s, that the plaintiffs, who had taken possession of the farm contracted to be sold, abandoned the possession, and refuséd to perform their part of the contract; and that, subsequently, the defendant sold the same for a less sum than the plaintiffs .bad contracted to give. These are the material facts in the case, and I apprehend there is no ground for the plaintiffs’ recovery.

. The defendant stipulated to give a deed of the premises contracted to be sold to the plaintiffs; this covenant is fulfilled, by-executing a conveyance of the - property without - warranty, or personal covenants. The case of Van Eps v. The Corporation of Schenectady, .(12 Johns. Rep. 436.,)' decides-this pointy If other ré'asons were necessary to show }the proprie ty of that de-»' cisión, than those stated in that-'case, they at once -suggest theniselves ;■ courts of--few ’can exact no more of parties-thfifr the, performance of their contracts, according to the'intention manU fested :by the terms used by them. '^then,.therefoFe, 'ii-is.,agre.ed .- ffiát a deed shall be given, nothing 'more can, be'hxacted than, «• an instrument sufficient to pass, the estate of-the parity who.-is" to, give a deed.' If it ■ be required 4hat the deed should contain Covenants of warranty, nothing is more simple than- the insertion'of that stipulation in the contract.. Courts are not to amend or alter the contracts "of parties.and to construe an: agreement-to give a deed’of a piece of land, to be also an agreement -to insert awarranty, would be exacting, morethan the agreement specifies, 'A-^deed does not,-, ot vi termini, mean a deed- with,. covenants of warranty, but only an instrumént with apt terms, conveying-the property sold. : :

These observations equally apply- to the second point. The defendant alone -was to give a deed ; theagreement is silent as to. the defendant’s wife uniting in the conveyance, and it would bean entire interpolation to say, that the defendant agreed that his, rwife-should join in the deed, filad the agreement been,-that the defendantshould, by deed, vest the title to the lands sold, in the plaintiffs, then the plaintiffs would have had a right,.if. the entire, legal title was in the defendant, so. that the wife might-have been ■endowed iof the' land, in case of hqr survivorship, to insist on -her joining in. the deed. It-is not necessary'to--'say,- that the de-fendant had such, an estafe,' as that the wife might have been endowed, the agreement not giving-rise to that question. . The agreement evidently contemplates, that-the deed to be given: by -.the defendant shall be-for the place called th,e Four -Corners, As included in-the mólitgagé given by Haight to; Rogers ¿f> Lam~ hert; -a deed, then, adopting the boundaries and description iii the. mortgage,, was a compliance with the contract, and it is. admitted, ■ that (he deed executed was according to the mortgage.

The defendant, then,-has complied with hia agreement in all re. . spects ; and yet the plaintiffs, who hav.e paid 700 dollars on the contract, and have; totally refused to perform their part of the. contract by accepting the deed,, and giving a mortgage,’seek to recover back the money thus paid, on'the .' ground that the, defendant has sold t.he farm', and- thus rescinded the. contract,:

Where there is no agreement subsisting between the parties, "but the same has been put an end to, by the election or refusal of the defendant to perform it, in general, the other party may. recover back any money paid by him in part performance. This was so decided in Raymond and others v. Bearnard, (12 Johns. Rep. 274.)

It may be asserted, with confidence, that a party who has advanced money, or done an act in part performance of an agreement, and then stops short, and refuses to proceed to the ultimate conclusion of the agreement, the other party being ready and willing to proceed and fulfil all his stipulations, according to the contract, has never been suffered to recover for what has been thus advanced, or done. The plaintiffs are seeking to recover the money advanced on a contract, every part of which the defendant has performed, as far as he could by his own acts, when they have voluntarily and causelessly refused to proceed, and thus have, themselves, rescinded the contract.

It would be an alarming doctrine, to hold, that the plaintiffs ..might violate the contract, and because they chose to do so, make their own infraction of the agreement the basis of an ac- ■ tion for money had and received. Every man who makes a bad bargain, and has advanced money upon it, would have the same right to recover it back that the plaintiffs have. The defendant’s subsequent sale of the land does not alter the case; the plaintiffs had not only abandoned the possession, but expressly refused to proceed, and renounced the contract. To "say that the subsequent sale of the land gives, a right to the plaintiffs to recover back the money paid on the contract, would, in effect, be saying, that the defendant could never sell it, without subjecting himself to an action by the plaintiffs. Why should he not sell ? The plaintiffs renounced the contract, and peremptorily refused to fulfil jt; it was in vain, therefore, to keep the land for them. The plaintiffs cannot, by their own wrongful act, impose upon the defendant the necessity of retaining property which his exigencies may require him to sell; this would be most unreasonable and unjust, and is not sanctioned by any principle of law. There must be a new trial, with costs to abide the event of the suit.

New trial granted.