Opinion of the Court by
Tompkins, Judge.
In the circuit court Sharp was plaintiff, and had a judgment, to reverse which Colgan appealed to this court.
The action was brought on a covenant, executed on the 1st November, 1818, by Colgan, to bargain and sell to Sharp forty arpens of land in the village of Cote Sans Dessien, “it being the possession which Colgan had purchased of the then late Jesse EvansColgan too, by said writing, conve-nanted to warrant and defend the said land to thesaidSharp, his heirs, and assigns, and to attend at the house of said Sharp on the first day of January, 1819, to perfect said agreement, by giving his obligation for securing and confirming it in general warranty to said Sharp, his heirs and assigns, and to put Sharp forthwith into possession of the premises, and as the same was rented to one Asa Williams, Sharp was to receive all the rents and proñts arising from the tenancy of Williams, For the performance of their respective covenants, Colgan to convey, &c., and Sharp to pay the consideration, the parties respectively bound themselves in the sum of one thousand dollars.
The breaches assigned are,
1st. That Colgan did not on the first day of January next after the date of the said covenant, or at any other time, perfect the said agreement, by giving the necessary obligation for securing and confirming the title to the said land to said Sharp, and he had not yet done it.
[75]*752d. That he, Sharp, has never received the rents and profits, &c. _
_ 3d. That said Colgan has not paid the said Sharp the said sum of one thousand dollars.
Colgan pleaded, 1st, that at the time appointed he went to the house of Sharp to make a deed according to the agreement, and offered to execute it, but that the plaintiff then waived the same, and excused the defendant, agreeing that the original covenant, called a memorandum of an agreement, if recorded, would be as good as a deed made in pursuance of the said memorandum of an agreement, with an averment that from that time hitherto he had been ready and willing, and still was so, to make a deed.
2d plea. After stating the same preliminary facts, it is averred that by mutual consent the time of making the deed was postponed, and that after the first day of January next, succeeding the date of said agreement he, Colgan, had made and tendered a deed to Sharp, and that Sharp refused to execute it, and that he is still willing to make one.
3d plea. That at the time of making the agreement lie did put the plaintiff into the possession of the premises according to agreement.
4th plea. That the defendant did recover all the rents and profits, &c.
5th. That before the commencement of this action the defendant paid to said plaintiff said sum of one thousand dollars.
The plaintiff replied to the first plea, first, that at the time the defendant offered to make the deed the title in fee was not in him, and concluded to the country.
2d. That the defendant did not, within a reasonable time after making said supposed parol agreement, offer to make a, deed according to the original agreement.
3d. That after said supposed verbal agreement, and before the commencement of this suit, the plain tiff demanded a deed, and the defendant refused to give one agreeably to the original agreement.
4th. That the defendant did not agreeably to the original contract, tender to the plaintiff a.t his house a deed, and the [76]*76^ not ^len an<^ there waive the same or excuse the from making said deed.
To the second plea:
1st. That the defendant did not after the 1st day of January, 1819, and before the commencement of this suit, execute a deed of conveyance of this land, and tender it agreeably to contract.
2d. That at the time of the alleged tender, and refusal to receive a deed, according to agreement, the title in fee was not in the defendant.
3d. Same as the first replication to the first plea.
4th. That after the time of making' said supposed parol agreement, and before. the alleged tender of the deed, a reasonable time to perfect the original agreement had elapsed5 and the defendant did not, within such reasonable time after making said supposed parol agreement, and before the alleged subsequent tender, perfect the original agreement.
5th. Same as the 4th replication to the first plea.
To the third, fourth, and fifth pleas, the plaintiff took issue. To the replications the defendant rejoined as follows :
To the first and second replications to the first plea, and to the third replication to the second plea, the defendant demurred.
To the fourth replication to the first plea, and to the first, second, and fourth replications to the second plea, the defendant joined issue in fact.
To the third replication to the first plea, the defendant rejoined, traversing the facts stated in such replication, and concluded to the country.
To the fifth replication to the second plea, the defendants rejoined, traversing the facts stated in that replication, and concluded to the country.
The plaintiff joined the defendants, demurrers to the first and second replication to first plea, and to the third replication to the second plea, and surrejoined to the rejoinder to the third replication to the defendant’s first plea.
The cause presented in the circuit court three issues of law, invQlving the sufficiency of the following pleadings on the part of the plaintiff; of these it is useless to say any [77]*77thing, as the correctness of the decision in the circuit court cannot be reviewed, the judgment being ultimately for the plaintiff, against whom the demurrers were decided.
On the trial of the cause, the plaintiff gave in evidence the writing declared on, that he had paid the consideration, and that he had demanded a deed of conveyance. All of the evidence given by the defendant, material to be here noticed is, that on the first day of January, 1819, according-to his written agreement, Colgan went to the house of Sharp, and, after some conversation on the subject of making a deed for the premises, it was agreed betwixt them, that a deed made by Colgan would be no better than the covenant already executed by him and Sharp would be, if it were recorded; and Sharp verbally agreed with Colgan to postpone the making of the deed. No definite time of postponement was agreed on. Colgan, it appears, had been before sued on the same cause of action; and pending this action Sharp had demanded a deed, after he had verbally dispensed for an indefinite period, with the making of the deed by Colgan. Colgan, in the year 1836, tendered to Sharp a deed, which Sharp would not accept. The evidence of Colgan’s title to the land covenanted to be sold, is as follows: On the 30th day of December, 1830, Baptiste Duchouquette addressed a petition to M. Delassus, lieutenant governor of the province, praying a grant to him of four thousand arpens of land, to be taken within certain limits therein mentioned.
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Opinion of the Court by
Tompkins, Judge.
In the circuit court Sharp was plaintiff, and had a judgment, to reverse which Colgan appealed to this court.
The action was brought on a covenant, executed on the 1st November, 1818, by Colgan, to bargain and sell to Sharp forty arpens of land in the village of Cote Sans Dessien, “it being the possession which Colgan had purchased of the then late Jesse EvansColgan too, by said writing, conve-nanted to warrant and defend the said land to thesaidSharp, his heirs, and assigns, and to attend at the house of said Sharp on the first day of January, 1819, to perfect said agreement, by giving his obligation for securing and confirming it in general warranty to said Sharp, his heirs and assigns, and to put Sharp forthwith into possession of the premises, and as the same was rented to one Asa Williams, Sharp was to receive all the rents and proñts arising from the tenancy of Williams, For the performance of their respective covenants, Colgan to convey, &c., and Sharp to pay the consideration, the parties respectively bound themselves in the sum of one thousand dollars.
The breaches assigned are,
1st. That Colgan did not on the first day of January next after the date of the said covenant, or at any other time, perfect the said agreement, by giving the necessary obligation for securing and confirming the title to the said land to said Sharp, and he had not yet done it.
[75]*752d. That he, Sharp, has never received the rents and profits, &c. _
_ 3d. That said Colgan has not paid the said Sharp the said sum of one thousand dollars.
Colgan pleaded, 1st, that at the time appointed he went to the house of Sharp to make a deed according to the agreement, and offered to execute it, but that the plaintiff then waived the same, and excused the defendant, agreeing that the original covenant, called a memorandum of an agreement, if recorded, would be as good as a deed made in pursuance of the said memorandum of an agreement, with an averment that from that time hitherto he had been ready and willing, and still was so, to make a deed.
2d plea. After stating the same preliminary facts, it is averred that by mutual consent the time of making the deed was postponed, and that after the first day of January next, succeeding the date of said agreement he, Colgan, had made and tendered a deed to Sharp, and that Sharp refused to execute it, and that he is still willing to make one.
3d plea. That at the time of making the agreement lie did put the plaintiff into the possession of the premises according to agreement.
4th plea. That the defendant did recover all the rents and profits, &c.
5th. That before the commencement of this action the defendant paid to said plaintiff said sum of one thousand dollars.
The plaintiff replied to the first plea, first, that at the time the defendant offered to make the deed the title in fee was not in him, and concluded to the country.
2d. That the defendant did not, within a reasonable time after making said supposed parol agreement, offer to make a, deed according to the original agreement.
3d. That after said supposed verbal agreement, and before the commencement of this suit, the plain tiff demanded a deed, and the defendant refused to give one agreeably to the original agreement.
4th. That the defendant did not agreeably to the original contract, tender to the plaintiff a.t his house a deed, and the [76]*76^ not ^len an<^ there waive the same or excuse the from making said deed.
To the second plea:
1st. That the defendant did not after the 1st day of January, 1819, and before the commencement of this suit, execute a deed of conveyance of this land, and tender it agreeably to contract.
2d. That at the time of the alleged tender, and refusal to receive a deed, according to agreement, the title in fee was not in the defendant.
3d. Same as the first replication to the first plea.
4th. That after the time of making' said supposed parol agreement, and before. the alleged tender of the deed, a reasonable time to perfect the original agreement had elapsed5 and the defendant did not, within such reasonable time after making said supposed parol agreement, and before the alleged subsequent tender, perfect the original agreement.
5th. Same as the 4th replication to the first plea.
To the third, fourth, and fifth pleas, the plaintiff took issue. To the replications the defendant rejoined as follows :
To the first and second replications to the first plea, and to the third replication to the second plea, the defendant demurred.
To the fourth replication to the first plea, and to the first, second, and fourth replications to the second plea, the defendant joined issue in fact.
To the third replication to the first plea, the defendant rejoined, traversing the facts stated in such replication, and concluded to the country.
To the fifth replication to the second plea, the defendants rejoined, traversing the facts stated in that replication, and concluded to the country.
The plaintiff joined the defendants, demurrers to the first and second replication to first plea, and to the third replication to the second plea, and surrejoined to the rejoinder to the third replication to the defendant’s first plea.
The cause presented in the circuit court three issues of law, invQlving the sufficiency of the following pleadings on the part of the plaintiff; of these it is useless to say any [77]*77thing, as the correctness of the decision in the circuit court cannot be reviewed, the judgment being ultimately for the plaintiff, against whom the demurrers were decided.
On the trial of the cause, the plaintiff gave in evidence the writing declared on, that he had paid the consideration, and that he had demanded a deed of conveyance. All of the evidence given by the defendant, material to be here noticed is, that on the first day of January, 1819, according-to his written agreement, Colgan went to the house of Sharp, and, after some conversation on the subject of making a deed for the premises, it was agreed betwixt them, that a deed made by Colgan would be no better than the covenant already executed by him and Sharp would be, if it were recorded; and Sharp verbally agreed with Colgan to postpone the making of the deed. No definite time of postponement was agreed on. Colgan, it appears, had been before sued on the same cause of action; and pending this action Sharp had demanded a deed, after he had verbally dispensed for an indefinite period, with the making of the deed by Colgan. Colgan, in the year 1836, tendered to Sharp a deed, which Sharp would not accept. The evidence of Colgan’s title to the land covenanted to be sold, is as follows: On the 30th day of December, 1830, Baptiste Duchouquette addressed a petition to M. Delassus, lieutenant governor of the province, praying a grant to him of four thousand arpens of land, to be taken within certain limits therein mentioned. To this petition Ihe lieutenant governor, after making some preliminary observations, answered in these words : “ I do grant to him, under the same boundaries as he asks [the land] in fee simple for him, or any other .who may represent him his rights, dispensing him of the survey on account of the existing great distance, until some concession, being granted in the vicinity, will oblige him to show his lines, and the surveyor of this Upper Louisiana, Don Antonio Soulard, shall take cognisance of his title, for his intelligence and government, in what concerns him; after which, the party interested shall have to solicit the title in form from the lieutenant general of these provinces, to whom alone corresponds, [78]*78by royal order, the distributing and granting all classes of of the royal domain.”
Mean conveyances from Duchouquette down to Colgan were shown, and evidence of possession, held by those claiming under Duchouquette for a long time, was offered by the plaintiff, but rejected by the court. Many instructions were asked, and exceptions taken, to the refusal to give them; but the defendant’s counsel have narrowed their objections down to the refusal of the court to give the following viz :
That the court refused to permit the defendant to give evidence of a prior suit pending on the same breach of covenant by the plaintiff, against the defendant, and has prevented the defendant from complying with a demand made pending the .suit, for a specific performance of the contract.
The court erred in instructing the jury, that although the parties waived to an indefinite time the making of a deed or obligation for the land according to the covenant, no demand after waiver need be proved to have been made by the plaintiff from the defendant, before suit brought.
The court erred in instructing the jury, that although a demand was necessary by the plaintiff to make a deed, yet the plaintiff could recover damages for interest before saah demand was made.
The court erred in instructing the jury that the plaintiff' could recover the consideration money and interest, rescinding or offering to rescind [the contract,] and without deliv-ing, or offering to deliver the possession of the land covenanted to be conveyed by the defendant.
The court erred in instructing the jury that although the plaintiff possessed, occupied and enjoyed the land, before demand of title or suit brought, yet the plaintiff could recover interest upon such purchase money pending such occupancy.
The points necessary to be settled in this case are :
1st. Did Colgan show in himself any title to the land.
2d. After Sharp agreed to prolong the time of making the deed by Colgan, did it become necessary for him to make demand of a deed to entitle him to his right of action against [79]*79Oolgan ? and if so, from what time would he be entitled to interest on the purchase money I
I» an action of covenant, the °?n' land, where performancef has been extended, the tioif accrues as soon as the covenantor becomes covenant hto make tho veyance, and able to do so lor want of a good title to not neoess'ary lor the cove-fe^H-escind the contract, or to make a demand of tho suftd,brought
[79]*793d. Was it necessary for Sharp to offer to rescind the contract in order to entitle him to recover the consideration money and interest in an action for a breach of covenant.
1st point. It may not be amiss to observe that it is very difficult to translate correctly into the English language the words used by the lieutenant governor Delassus, in answer to the petition of Duchouquette. The official correspondence of the lieutenant governor, we are bound to believe was expressed in appropriate language. It is well known that the translator of the petition, and the answer • thereto, is a man of education and strict integrity. Yet because he was not a lawyer, and because of the difficulty of finding words in the English language corresponding in meaning with those used by M. Delassus, he is made to say that he gives the land to Duchouquette in fee simple. But we learn from the following part of the communication that he had no authority to do more than authorise Duchouquette to settle on the land, and to direct the surveyor of the province to mark out the boundaries; after which, continues the lieutenant governor, “ the party interested will have to solicit the title in form from the lieutenant general of these provinces of Louisiana, to whom alone corresponds by royal order, the distributing and granting all classes of lands of the royal domains.”
There has been no evidence given, that this land ever was surveyed previous to the occupation of the country by the United States ; nor does it appear that it ever was confirmed by any act of congress, or indeed that it was ever recommended by any board of commissioners for confirmation.
We are then driven to the conclusion that the title remains in the United States, and that the possession of Oolgan, and of those under whom he claimed, was tortious, and conse-f quently a deed from him can convey no right or title. It could answer no purpose then, either to offer to rescind contract entered into with Oolgan, or to make any demand of a deed after Sharp had agreed to prolong the time óf ma-kina a deed. ° ■
the court held the measure be the* pSur- ° witMegalhf terest, with-the rents and in°general^ 18 whenthe’ vendor’s title defecUve^he can recover nothing from the vendee by way of rents and profits, because the vendee would be liable to the owner of the land for rents and profits.
[80]*80The action is covenant, and the right of action accrued as as he, Colgan, became liable to make the deed, if he were unable to do it.
®ne wou^ suppose that the only possible inquiry in such. an action would be the amount of damages. -To prove that the plaintiff, Sharp, should have offered to re-deliver the premises, and could recover no interest, but would lose his : . . interest in consideration or his enjoying the rents and profits Premises> we are referred to the cases of Wickliffe v. 1st. Dana, 594;, and Taylor v. Porter, same vol. 423-anc] gu]]oc]£ v< Bremiss> 4th Marshall, 424; which were all cases in Chancery, and where the vendors had some color . , . ot right to the property sold, and that too was improved ProPerty- In the strictness of legal proceedings, Colgan, defendant in this action of covenant, could get no allowance f°r rents and profits. Pie must have resorted to a court of equity for that and all other relief; but in order to do him .... . . justice in this court, the circuit co urt, with the assent of ®^arP» ^le plaintiff, instructed the jury to deduct the value of the rents, &c., from the interest on the purchase money. When this case was formally before this court, it was said said by the court that legal interest and purchase money was the proper measure of damages. See 4th vol. Mo. Dec. p. 263.
And as above observed, the jury were directed to deduct from the interest the amount of the rents and profits. Thus the circuit court, the plaintiff’s counsel not resisting by this instruction, gave Colgan all he could have obtained, either in a cross action at law, or by a decree in a court of chancery. It is in general held, that when th e vendor’s title is altogetller defective, he can recover nothing from the vendee by way of rents and profits, because the vendee would be the proprietor of the land; but the United States appear in this case to have been the proprietors, and Colgan has been treated by the circuit court, so far as the rents and Pr°fits are concerned, as if he had a right to receive rent, In every view I have been able to take of the case, the de-cisi°ns °f the court have been such that Colgan had no room to complain,
[81]*81I am therefore of opinion that the judgment ought to be affirmed, and the other judges concurring, the judgment the circuit court is affirmed.