Bradley v. Osterhoudt

13 Johns. 404

• Court: New York Supreme Court
• Decided: August 15, 1816
• Status: Published

Opinion

Per Curiam.

This is an action of covenant upon articles of agreement, by which the defendant covenanted to convey to the plaintiff by a good and sufficient deed, a full unincumbered title to a farm and piece .of land therein specified. The plaintiff in his declaration, assigns, as a breach of the covenant, that the defendant, after the making and execution thereof, and before the giving of the deed, removed from the premises u cider mill, which is averred to haye been annexed to, the freehold, .an! making a part of the fan», and so the defendant hath not eon-veyed to Him, the plaintiff, the said farm of land, according to the true intent and meaning .óf the .said covenant. .Tim defendant, after craving .oyerof the ¡agreement,, pleads, that he did,, within the timé therein specified, convey, to. the plaintiff, by a good and sufficient deed, a, full unincumbered title to the land in the said’ articles specified. To which plea there.is a general demurrer. This plea is bad. A particular breach having been, assigned in the declaration, the plea should have answered it. Whether the covenant to convey the farm would: also embrace the cider mill, might depend on circumstances. When the declaration avers, that it was annexed to the freehold, and making a part of the farm, the plea should have answered this breach. If the defendant relied on the acceptance of the deed as a. fulfilment and discharge of the covenant, be ought to have so pleaded. The general plea of performance is not a sufficient answer to the special breach assigned. The. plaintiff is, accordr ingly, entitled to judgment, with, leave, however, to the defends ant to amend his plea, . ■ ■ ,

Judgment for the plaintiff?