Peters v. McKeon

4 Denio 546

• Court: New York Supreme Court
• Decided: May 15, 1847
• Status: Published

Opinion

By the Court, Bronson, Ch. J.

When the title to real estate fails after an executed contract of sale, the measure of damages, in an action on the covenants of seisin and for quiet enjoyment, is the consideration money paid, with interest for so long a time as the vendee may be compelled to pay for mesne profits, and the costs of the suit by which he was evicted. He can recover nothing for increased value, nor for improvements made on the land. (Staats v. Executors of Ten Eyck, 3 Caines, 111; Pitcher v. Livingston, 4 John. 1; Kinney v. Watts, 14 Wend. 38; Kelly v. Dutch Church, 2 Hill, 115.) And on an executory contract for the sale of lands which the vendor believes to be his own, and where there is no fraud on his part, if the sale falls through in consequence of a defect of title, the measure of damages is substantially the same as it is in the case of an executed sale. If the vendee has paid any part of the consideration, he may recover back the money, with interest. But he can recover nothing for the loss of a good bargain. (Flureau v. Thornhill, 2 W. Black. 1078; Baldwin v. Munn, 2 Wend. 399. And see Walker v. Moore, 10 B. & C. 416.) And he cannot, I think, be entitled to the expenses which may have been incurred in removing to the land, or in making improvements upon it, whether of a permanent or temporary nature. There is no reason in favor of such an allowance, which would not apply with equal force had the title failed after a deed had been given; and in that case it is entirely settled that such expenses cannot be recovered.

It may be added, that in this case the plaintiff did not act with sufficient caution. He should have looked into the title, and ascertained whether it was likely to prove satisfactory before he took possession of the property under the contract. On this ground the case of Walker v. Moore, (10 B. & C. 416,) fully sustains the judgment of the court below.

In Hopkins v. Grazebrook, (6 B. & C. 31,) the defendant was held liable on the ground that he had contracted for the sale of lands to which he had no color of title. In Driggs v. Dwight, (17 Wend. 71,) the bargain did not fall through in consequence of any defect of title. The defendant perversely refused to perform his contract, when there was no obstacle in the way. The damages which the plaintiff recovered resulted from the fraudulent conduct of the defendant. Nurse v. Barns, (T. Ray. 77,) is also a case where the defendant wrongfully and without excuse, refused to perform his contract, and kept the defendant out of possession. We see nothing in the cases cited by the plaintiff’s counsel which conflicts with the decision of tiie superior court.

Judgment affirmed.