Beach v. Steele

12 N.H. 82

• Court: Superior Court of New Hampshire
• Decided: July 15, 1841
• Status: Published

Opinion

Upham, J.

The writing on the back of the bond, and the note or contract, declared on in the first count, are conceded in the case to be part and parcel of the same contract. By this contract, the sum of two hundred dollars was to be paid, conditionally, in consideration of the conveyance of land by a good deed of warranty, and provided the land should be sold by the defendant, and payment received.

The testimony of Platt was offered to show a parol contract, made at the same time with the written contract, to pay four hundred and eighty dollars, instead of the two hundred dollars. This evidence was rightly ruled out by the court, as inadmissible.

The contract is executory. The sum named to be paid is not like the consideration of a deed which is executed, and where the amount stated is immaterial to the validity of the deed, or the effect on the parties. The amount to be paid is here the most important portion of the contract. This amount was specified in writing, and it is altogether incompetent to vary it by parol evidence of a contract for a different sum, made at the same time the writing was given.

We have, then, to enquire merely whether the conditions on which payment was to be made by the defendant have arisen. It is contended, in the first place, that the plaintiff has not fulfilled the condition of a conveyance of the land by a good deed of warranty. He has executed a deed which is perfect in its form; but the plaintiff at the time had no title to the land, and did not acquire any until nearly a year after he alleges the defendant had sold the land.

Had the plaintiff covenanted to convey the title to the land, he would have been bound to convey the legal estate in fee, free from all valid claims, liens, or incumbrances whatsoever. 10 Johns. 266, Jones vs. Gardner; 2 Serg. & Rawle 498, Dearth vs. Williamson; 2 Greenl. 22, Porter vs. Noyes; but a covenant to execute “ a good war-rantee deed of conveyance.” has been holden to refer to the instrument only, and not to the title. 20 Johns. 130, Parker vs. Parmele; 15 Pick. 546, Finney vs. Ashley; 4 Paige 628, Everson vs. Kirtland. It seems to me, however, that the parties, by a covenant of a good deed of warranty, ordinarily understand something more than a mere deed in perfect form, and that they intend by it a conveyance of title with warranty ; but it is unnecessary to determine this point. There are other conditions in the contract which are unfulfilled, so as to preclude the plaintiff in any event from recovering.

The land was conveyed by the defendant to Cushman, not as a sale, but preparatory to a sale to be effected by him. Cushman conveyed to Greaves, with the condition that, if the title to the land failed, the conveyance was to be void ; and provision was made, at. the time of the sale, for an examination of the title by legal counsel, by whose determination the parties were to abide.

This examination was had, and a report was made in writing, that the title was wholly defective. For this cause the sale was not perfected, or was rescinded, or relinquished, and Cushman received nothing as proceeds of the sale, and paid nothing to the defendant.

Under these circumstances, there can be no pretence that the contract declared on is binding against the defendant, when it was made expressly on the condition that payment was to be rendered only in case he “ could or did sell the land, and received payment for the same.”

The case finds that only a portion of the land was contracted to be sold. It is said, however, that the defendant might, at. the same time, have contracted to sell the remainder, and that he retained this portion as valuable timber lands. To this it may be answered, that, if he did not receive a fair offer for the lands, he should not have disposed of them; and, also, that had he disposed of them at the offer made by Greaves, it would have been subject to the same terms as to title under which the rest of the lands were contracted for, and which, owing to the defect of title, availed nothing.

Exception was taken in this part of the case to the cross-examination of the witness, in stating the proceedings in chancery in the state of New-York, and the substance of the report of the counsel as made in relation to the title to the lands, without producing copies of the proceedings, or of the report. But this testimony is immaterial. The only important question in this branch of the case, is, whether a sale in fact was made, or whether the defendant, or his agent, Cushman, acted in good faith in their endeavors to effect a sale. It is quite clear from the testimony, that the contract of sale with Greaves was dependent on the title. If this was defective, the contract was to terminate. Neither the defendant nor Cushman would be bound to insist upon it. If the parties were satisfied of themselves that the title could not be sustained, it was perfectly competent for them to relinquish it. They were under no obligation to sell under a defective title. The contract was relinquished. No sale was made, and no proceeds received ; and as the obligation of payment depended on these conditions, the plaintiff has no claim to recover.

Judgment for the defendant.