Wilson v. M'Neal ( 1840 )

The opinion of the court was delivered by

Rogers, J.

This case depends upon the construction of the article of agreement. The article recites, that the parties, having purchased a tract of land, agreed to divide it between them in the 'manner therein specified. The defendant to whom the deed wa^ to bo made by the vendor, reserved to himself a certain portion of the tract, described by courses and distances, and covenants to make a deed, in fee simple, to the plaintiff, for all the residue of the tract, with the appurtenances. M’Neal also covenants, in consideration of having all the grain for his own use ground toll free by Wilson, and his assigns, that he will authorize, empower and permit Wilson to erect dams and flow hack the water on any part of the lot No. 122, to any distance that will give a perpendicular fall of fifteen feet, for the propelling of machinery.

The article contemplates such a division of the property as will suit the purposes and convenience of both the contending parties, and the principal object of Wilson would appear to have been to obtain a water power for the propelling of machinery. This it was supposed would be attained by a license or permission to erect a dam on his own land, accompanied with the right .or privilege to overflow the lands of M’Neal. The latter agrees to give the former a deed for the residue of the tract with the appurtenances; and what is this right to erect the darn and overflow the land of the other, but ah appurtenant to the land conveyed, and so made by the express contract of the parties? The contract is entire, and it is very clear that the fight secured by the agreement will pass with the land to the assignee, as an incident to it even without express words. The parties would seem to have had in view, the transfer of the land, as the article provides, for the grinding of the grain toll free by Wilson and his assigns. In fact, if this were not the construction of the agreement, it would very much diminish the value of the property, as the value must greatly depend on the water privilege which is annexed to it. The idea of the court appears to have been that this was a collateral independent covenant, which would not merge in the deed. But if this was an appurtenance the court was in error. A deed for land accepted by the vendee after articles of agreement, is to be considered as the ultimate intent of the parties, where there is no misconception of the deed by either party. Critzen v. Russel, 10 Serg. & Rawle 78. Articles of agreement for the conveyance of land, are' in their nature executory, and the acceptance of a deed in pursuance thereof, is to be deemed prima facie an execution of the contract, and the agreement thereby becomes void and of no further effect. Parties may no doubt enter into covenants collateral to the deed, or cases may be supposed where the deed would be deemed only a part execution of the contract, if the provisions of the two instruments clearly manifested such to be the intention of the parties. But the prima facie presumption of the law arising from the acceptance of a deed is, that it is the execution of the whole contract, and the rights and remedies of the parties, in relation to such contract, are to be determined by such deed, and the original agreement becomes null and void. 10 Johns. 298. As the right to overflow the defendant’s land is a consequence of the creation of the dam on the land of the plaintiff, it is an appurtenant or incident to the land itself, and consequently ought to have been inserted in the deed. We cannot, therefore, agree that the tender of a bleed, omitting all reference to the water privilege or easement, was a compliance with the article of agreement. A court of chancery would not compel him to accept a deed which, to say the least of it, would have exposed hint to the risk of waiving that which was evidently his principal object in entering into the contract, and which was the primary consideration moving from the defendant to the plaintiff. It is needless to press the point, that this is an incorporeal hereditament which lies in grant, as, for the reasons above stated, we are of opinion that the judgment should be reversed.

The next point is as to the tender. A vendee of land is not bound to accept or refuse to accept a deed for the premises, immediately after it is tendered to him by the vendee. He may demand a reasonable time to examine it himself, or submit it to the investigation of counsel. But where the vendee refuses to accept the deed, on good or on frivolous objections, or without assigning any reasons whatever, he is not deprived of the locuspenitentix, but may waive his objections, whether well or ill founded, and demand his deed. The demand of the deed here, although made in the woods, was, as is presumed, on the farm of the defendant, and within a short distance of his place of abode. If it was made in good faith, the plaintiff had a right to require something more from M’Neal than the reply that he could have his deed. His willingness to comply with the contract, should be manifested by his acts as well as his words. The assent of M’Neal to the plaintiff’s request, unaccompanied by any act or attempt to comply with his engagement, will not avail him, provided the demand was made in good faith, and M’Neal had a reasonable time to deliver the deed. This, however, will depend upon the bona f des of the transactions manifested by all the circumstances of the case, and is a matter which may be left to the decision of the jury.

Judgment reversed, and a venire de novo awarded.