Critchett v. Cooper

18 A. 778, 65 N.H. 167

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1889
• Status: Published

Opinion

Smith, J.

The defendant’s promise to pay the plaintiff $2,500 at the time stipulated was upon condition that he should at the same time deliver to her a warranty deed of the premises bargained for. The payment of the money and the delivery of the deed were to be concurrent acts, and the agreements were dependent. Swan v. Drury, 22 Pick. 485, 488. The plaintiff’s covenant would not be satisfied by his executing and delivering a deed in legal form of the land if his title was an imperfect one. His covenant, in legal effect, required him to convey to the defendant “ a perfect and indefeasible title, and to assure the same by a deed in common form and with the usual full covenants. The undertaking was for a conveyance, good in form and substantially operative in fact upon the title, and vesting it in the defendant free from incumbrance.” Little v. Paddleford, 13 N. H. 167, 175. The defendant did not agree to trust to the plaintiff’s covenants of warranty, nor to advance money to enable him to pay off incumbrances.

When the plaintiff demanded payment April 1, hé made no tender of a deed. When he tendered a deed April 11, the land was incumbered by Call’s attachment and the Wort-hen mortgage. If verbal authority to his attorney to release the attachment and mortgage was sufficient, he did not release nor offer to release unless the money was first paid. It does not appear that the defendant waived any objection. She was not under any legal obligation to rely upon the plaintiff’s promise to do what by the terms of the contract she was entitled to have done before paying the consideration.

Exceptions overruled.

Blodgett, J., did not sit: the others concurred.