The Chancellor.
There was no reason whatever for appealing from the decision upon the motion to suppress testimony.. Only two days notice of the application was given when the rules of the court required four. This of itself would have been a sufficient reason for denying the motion even if the testimony had been irrelevant. Most of the evidence objected to, however, was proper, upon the supposition that the legal effect of the written instrument was as contended for by the defendant’s counsel; as it went to show that there was no difficulty in obtaining a release from the patroon so as to" make a perfect title, if the defendant had attended on the first of April, according to his agreement, and had put his refusal to complete the purchase upon that ground. Time was not made a material part of the contract. And if the agreement had in terms required the complainant to give a perfect title in fee' of the premises, free from every condition whatever, this court would have decreed a specific performance upon his obtaining a full release of all the covenants and conditions in the lease from Van Rensselaer, This testimony, tended to prove that the defendant was acting in bad faith, by attempting to take advantage of what he supposed to be a technical defect in the title, which was not expressly provided for in the written agreement, although perfectly understood by both parties. If the decree, therefore, had directed a specific performance only upon condition that the complainant procured a full release from the patroon, this evidence was sufficient to show that the defendant should be charged with the payment of the costs. Had he intended to avail himself of this technical objéction, and at the ' same time to save himself the costs of a useless litigation* he should have attended on the first of April at the place appointed and insisted upon a strict performance of the written contract notwithstanding the parol understanding of the .parties that he was tó take the title as conveyed to [411]*411the complainant by Van Rensselaer. If he had done this and the vendor had not been able to procure a release from the patroon so as to be able to make a perfect title free from all reservations or conditions within a reasonable time, the complainant would have proceeded in this suit at the peril of costs ; although he had finally succeeded in consequence of being able to make a good title at the time of the decree. As it is, however, the appellant is only entitled to defend himself here upon his strict legal rights; as this testimony shows that he has no equity in his defence, and that the respondent is entitled to a decree for a specific performance, even upon the appellant’s construction of the agreement, if the release of Van Rensselaer can now be obtained. The Only question therefore, is, whether the vice chancellor should, upon this evidence, have directed a reference to a master to ascertain whether such a release could not be obtained so as to enable the complainant to make a perfect title, or whether he was right in decreeing that the deed of the first of April, 1834, was such an one as the defendant was bound to accept without such a release; as from the evidence it may fairly be presumed that the patroon would execute such a release without hesitation if it should be necessary. He would unquestionably have done it at the date of the deed if the defendant had then put his refusal to perform the agreement on the ground which he afterwards took in his answer.
In the case of Gazely v. Price, (16 John. Rep. 268,) the former supreme court of this state decided, how correctly I will not undertake to say, that a covenant to give to the purchaser a good and sufficient deed of premises contracted to be sold, was to be considered as complied with, at law, by the execution of a conveyance good in point of law to pass to the purchaser whatever title the vendor had in the premises sold. And that court adhered to such decision in the subsequent case of Parker v. Parmalee, (20 Idem, 130,) where the covenant was to execute a good warrantee deed of conveyance of the lot. Without stopping to inquire whether this is the correct construction of such a covenant, according to the intention of the parties, where there is [412]*412nothing to show that the terms of the covenant were intended to apply to the form of the conveyance and not to the sufficiency or validity of the title, it may be considered as a settled principle of the court of chancery that it will not lend its aid to compel a purchaser to take a conveyance which does not convey such a title as he supposed he was contracting for at the time he entered into the agreement; unless there is something in the case to show that it was the understanding of the parties that he was to run the risk as to the validity of the vendor’s title. But a specific performance may be decreed if the complainant is able to perform his agreement in substance ; although there is a trifling variation in the description of the property, or a trifling incumbrance on the title, which cannot be removed but which may be the subject of compensation. (Magennis v. Fallon, 2 Moll. Rep. 588. King v. Bardean and wife, 6 John. Ch. 38.)
The reservation in the patroon’s lease to Winne of mines, minerals and streams of water, &c. was not intended to cover any thing of the kind which was supposed actually to exist upon or in this land. But this reservation, as well as the nominal rent and the pre-emptive right of purchase which is contained therein, arose from the circumstance of the grantor’s agent taking a blank lease to fill up for the purpose of making the conveyance, and to save himself the trouble of writing an absolute deed. The legal construction of the instrument, however, must be determined from its actual contents. And I only refer to these circumstances to show why such reservations of minerals and water privileges are found in the conveyance of a lot of land upon which nothing of that kind was supposed to exist. There is no evidence to show the existence of minerals upon the lot; and as the testimony shows there were no such streams or runs of water as contemplated by this reservation, the reservation itself forms no valid objection whatever to the complainant’s title. The defendant might as well object to the title on the ground that the original grant from the crown contained a reservation of the royal mines of gold and silver, which may, by a bare possibility be contained in [413]*413the bowels of the earth within the limits of this farm. The reservation and provisions of the lease when examined together,* show clearly that the runs and streams of water, and the lands under the same, which were intended to be covered or included in such reservation, were only such natural streams as were susceptible of a beneficial use for milling purposes. The artificial ditch which the owner has made for the purpose of draining his land, is not, therefore, within the reservation, even if the waters which run in it at some seasons of year were capable of being used for manufacturing and other hydraulic purposes. The objections to the title, if any, must, therefore, rest upon the grantor’s preemptive right of purchase for twenty-one days after notice; and the reservation of the nominal rent of one sixtieth part of a bushel of wheat.
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The Chancellor.
There was no reason whatever for appealing from the decision upon the motion to suppress testimony.. Only two days notice of the application was given when the rules of the court required four. This of itself would have been a sufficient reason for denying the motion even if the testimony had been irrelevant. Most of the evidence objected to, however, was proper, upon the supposition that the legal effect of the written instrument was as contended for by the defendant’s counsel; as it went to show that there was no difficulty in obtaining a release from the patroon so as to" make a perfect title, if the defendant had attended on the first of April, according to his agreement, and had put his refusal to complete the purchase upon that ground. Time was not made a material part of the contract. And if the agreement had in terms required the complainant to give a perfect title in fee' of the premises, free from every condition whatever, this court would have decreed a specific performance upon his obtaining a full release of all the covenants and conditions in the lease from Van Rensselaer, This testimony, tended to prove that the defendant was acting in bad faith, by attempting to take advantage of what he supposed to be a technical defect in the title, which was not expressly provided for in the written agreement, although perfectly understood by both parties. If the decree, therefore, had directed a specific performance only upon condition that the complainant procured a full release from the patroon, this evidence was sufficient to show that the defendant should be charged with the payment of the costs. Had he intended to avail himself of this technical objéction, and at the ' same time to save himself the costs of a useless litigation* he should have attended on the first of April at the place appointed and insisted upon a strict performance of the written contract notwithstanding the parol understanding of the .parties that he was tó take the title as conveyed to [411]*411the complainant by Van Rensselaer. If he had done this and the vendor had not been able to procure a release from the patroon so as to be able to make a perfect title free from all reservations or conditions within a reasonable time, the complainant would have proceeded in this suit at the peril of costs ; although he had finally succeeded in consequence of being able to make a good title at the time of the decree. As it is, however, the appellant is only entitled to defend himself here upon his strict legal rights; as this testimony shows that he has no equity in his defence, and that the respondent is entitled to a decree for a specific performance, even upon the appellant’s construction of the agreement, if the release of Van Rensselaer can now be obtained. The Only question therefore, is, whether the vice chancellor should, upon this evidence, have directed a reference to a master to ascertain whether such a release could not be obtained so as to enable the complainant to make a perfect title, or whether he was right in decreeing that the deed of the first of April, 1834, was such an one as the defendant was bound to accept without such a release; as from the evidence it may fairly be presumed that the patroon would execute such a release without hesitation if it should be necessary. He would unquestionably have done it at the date of the deed if the defendant had then put his refusal to perform the agreement on the ground which he afterwards took in his answer.
In the case of Gazely v. Price, (16 John. Rep. 268,) the former supreme court of this state decided, how correctly I will not undertake to say, that a covenant to give to the purchaser a good and sufficient deed of premises contracted to be sold, was to be considered as complied with, at law, by the execution of a conveyance good in point of law to pass to the purchaser whatever title the vendor had in the premises sold. And that court adhered to such decision in the subsequent case of Parker v. Parmalee, (20 Idem, 130,) where the covenant was to execute a good warrantee deed of conveyance of the lot. Without stopping to inquire whether this is the correct construction of such a covenant, according to the intention of the parties, where there is [412]*412nothing to show that the terms of the covenant were intended to apply to the form of the conveyance and not to the sufficiency or validity of the title, it may be considered as a settled principle of the court of chancery that it will not lend its aid to compel a purchaser to take a conveyance which does not convey such a title as he supposed he was contracting for at the time he entered into the agreement; unless there is something in the case to show that it was the understanding of the parties that he was to run the risk as to the validity of the vendor’s title. But a specific performance may be decreed if the complainant is able to perform his agreement in substance ; although there is a trifling variation in the description of the property, or a trifling incumbrance on the title, which cannot be removed but which may be the subject of compensation. (Magennis v. Fallon, 2 Moll. Rep. 588. King v. Bardean and wife, 6 John. Ch. 38.)
The reservation in the patroon’s lease to Winne of mines, minerals and streams of water, &c. was not intended to cover any thing of the kind which was supposed actually to exist upon or in this land. But this reservation, as well as the nominal rent and the pre-emptive right of purchase which is contained therein, arose from the circumstance of the grantor’s agent taking a blank lease to fill up for the purpose of making the conveyance, and to save himself the trouble of writing an absolute deed. The legal construction of the instrument, however, must be determined from its actual contents. And I only refer to these circumstances to show why such reservations of minerals and water privileges are found in the conveyance of a lot of land upon which nothing of that kind was supposed to exist. There is no evidence to show the existence of minerals upon the lot; and as the testimony shows there were no such streams or runs of water as contemplated by this reservation, the reservation itself forms no valid objection whatever to the complainant’s title. The defendant might as well object to the title on the ground that the original grant from the crown contained a reservation of the royal mines of gold and silver, which may, by a bare possibility be contained in [413]*413the bowels of the earth within the limits of this farm. The reservation and provisions of the lease when examined together,* show clearly that the runs and streams of water, and the lands under the same, which were intended to be covered or included in such reservation, were only such natural streams as were susceptible of a beneficial use for milling purposes. The artificial ditch which the owner has made for the purpose of draining his land, is not, therefore, within the reservation, even if the waters which run in it at some seasons of year were capable of being used for manufacturing and other hydraulic purposes. The objections to the title, if any, must, therefore, rest upon the grantor’s preemptive right of purchase for twenty-one days after notice; and the reservation of the nominal rent of one sixtieth part of a bushel of wheat.
As the law does not regard trifles, the reservation of a pepper corn rent, or any thing else which is merely nominal, is not an objection to the title which could justify a court in refusing a specific performance, even where the defendant had contracted to purchase without any notice that such nominal rent was reserved. And the year’s rent, or one pound of wheat which is reserved in the nature of a fine upon the alienation of the property, is, if possible, of still less consequence than the annual reservation of a pepper corn as rent upon a lease in fee. The pre-emptive right of purchase, however, is a partial restriction upon the power of alienation. It is a remnant of feudal vassalage which a freeman would not be willing to have his land subjected to, although the actual injury to the owner of the land would amount to very little in a pecuniary view. In this case, therefore, if the defendant had in terms contracted for the conveyance of a perfect title, without notice of the existence of such a clause in the lease, I should not compel him to take the title of the complainant without compensation for this injury, unless the vendor should be able to procure a release of this condition so as to make a clear title.
There is no doubt, however, from the testimony, that the defendant knew of the existence of this covenant in the [414]*414lease at the time he contracted to purchase the land. And he either expected to take the title subject to the conditions of the patroon’s conveyance, or he intended to commit a fraud upon the complainant by insisting upon this technical objection to the title afterwards. It appears that the conveyance to Winne, except as to the amount of rent, was in the usual form of the patroon’s conveyances for lands in his manor. And as the defendant saw it was one of the printed leases, and according to his own declaration knew how those conveyances usually ran, he must have known, or at least supposed, it contained this pre-emption clause. The scrivener who drew the agreement of the 6th March, also says that he was to draw the deed to Winne subject to the conditions in the patroon’s deed. The case, therefore, comes directly within the principle of the decision of the late Chancellor Kent, in Ten Broeck v. Livingston, (1 John. Ch. Rep. 357.) There a specific performance was decreed, although there was a rent reserved upon the premises, not mentioned in the agreement; but of which the defendant had notice previous to his entering into the agreement. It is evident that the defendant, under the decree in this case, will have the same title which he expected to obtain when he entered into this contract with the complainant. And as the evidence of the previous knowledge of the defendant of the state of the title does not contradict any thing contained in the agreement itself, the vice chancellor was right in decreeing a specific performance without requiring the complainant to make any compensation for the supposed defect in that title, or requiring him to procure a release from the patroon.
The decree appealed from must therefore be affirmed with costs.