#### Ketchum & Sweet *against*G. B. Evertson.

place, the tender of a mere quit-claim deed, without cove* naot or warranty, is a performance of the co* wherea person agreed to sell J.a'>d to another. “ to give a deed of the-premises”' venant; nor is theew¡feac5 ti» join in the deed.

A party whó fas at¿radone ¡,arí ifi“e“ento cím’píetioT and ííífraít,” °fth& ílíg performed', tí pSrJ evetí 'tí dor.?6TM recover caback hís ““vancedt nor is he entitied to compeo-, sation for what 5e Pay thave “al by vendorüfe VÍS &t^¿otiierí'

THIS was an action of *assumpsit.*The declaration contain- - . *x*ed the usual money counts, and a count upon an *tnsimul computassenti ■ .*■ ' '

- On the 8th of *March,*1811, the parties, at *Poughkeepsie,*entered into a written agreement, by which the defendant contracted to sell to the plaintiff a place called *“*the *Four*Corners, in the town of *Washington,*and the lands included in a mortgage givén by *Ébenezer Haight*to *M‘ehemiah-Rogers*and *Daniel R. Lambert,*dated the 18th *of June,*1809,” for the consideration of 6,000 dollars, part of which, viz. 700 dollars, was to be •i i 7 A , paid oh the 1st day of *May¡*ensuing the date of agreement, and the residue of the purchase money, over the sum of 4,000 dot* lars,. to be secured by a mortgage, by the plaintiffs, to *Rogers Lambert,*to be paid in three annual instalments, and the residue,.to- wit, the. sum of 4,000 dolíais, due to the heirs of *Ni~ cholas Evertson,*deceased, either to remain- under the mortgage, then existing, or á new mortgage to be given by the plaintiffs,' ■as the defendant should elect; the whole business to bé trahsacted, and the defendant to give a deed of the premises to'the plaintiffs on the 1st day of *May,*then next, at the office Of *Rudd r J ”*J . ** **«§• *Evertson,*in *Poughkeepsie.*

*t.*The plaintiffs entered into possession of the premises under this agreement. On the 1st of *May,*1811, a quit-claim deed for the premises, to the' plaintiffs, executed by the. defendant, but not by his wife, was left at the office of *Rudd ¿r*in *Poughkeepsie,*ready to be delivered'to the plaintiffs, who did not call for it, until in the month of *October*following, when *360. *Kelchum*requested the defendant to give up the. contract, oh" servingthat his partner, *Stoeei,*had failed; tot. the defendant Refused to rescind the agreement; *Keichuth*t-hénobjected that - the ,débd /jvPs. á ipgre quit-cláimj ánd'did hoteontáin the usuái. Covenants of seisin, &c;, or warranty, noi? was it sighed.by:the wife 'of th'e • defendant; .Thé-defendant'said’thé boundaries were, according to the mortgage of *Roger’s &*Lambert; under which 'the plaintiffs'há‘d purchased, that the deed was pursuant tb the agreement, bud. the only one hé inténdedito- give • and having performed eVery thing hé. ivas bound in' do by -the cóntra'cq ' ■he should not give-it up ; but that he was willing to rectify aPy mistake about the boundary. *Kelchum*then tendered á deed to the defendant with. Covenants and ivarratíty, wffó refu¿ sed to execute it. *Keichkm*then sdid he considered' thepop** tract as at an end, and déPianded the 70Ó dollars, which, it ;&pv. péaredjhad.been paid. Jby the plaintiffs, oh, the *§thbíMáy,*181-Í ^ and was applied to. pay the interest bn the mortgage *tú Evérts'on,*and- the' ebsts due to the att°fcneyS;-bf *Rpgeré $ Lamhprt. ■*The.plaintiffs quitted thé prfeniisbs inFebruary,foííówipg',' and in *March*the beys iVepe tendered to the. defendants/who re! fused-to take them; - ■' -fo;-.

In 18X3, the defendant' sold-'the premises to *Stephen Allen,,*fof the consideration of 4^560 dollars,,by a quitclaim-deed.

it appeared that ihe.ppópferty was about to be sold under the ipbrtgag.e' *to'Rogers Lambert,*and that *Rudd fy*Evertsan^.at? tornpys for them, requested the defendant to buy in the proper! ty at the sale, in ofder to sayb something on that mortgages thqrp being a *priópmortgage’tóEverté'on;*ánd that the defendantj accordingly, became-a mere pbminal purchaser that thé sum of 6,000 dcllars, which- the plaintiffs agreed In -pay,, was.not ¡enough to satisfy both mortgages; and that, the plaintiffs,'before-they pnade-the contract, knew Jiow. the defendant acquired thé title. . .. - • . ; . .

Thfe judge .was. of fopinibh,, that the plaintiffs were entitled tb recover; The defendant Claimed, a deduction for two years yalüé jbf the property, for the time the plaintiffs had.kept him put of possession, which was rejected by -the judge; The jury found a verdict for the plaintiffs, for. the, 700 dollars, ,aná Interest;. . ,,

.ÁmqtionWhá jtoade^ to set,aside ,'the. verdict, and for a new trial *.*•• - - .: . - .... .....

*361*P. Buggies,*for the defendant,

contended, 1. That the defendant was a mere *trustee*in the business, without any interest, and that his *cestui que trusts,,*if any persons, were alone answerable. There was a resulting trust to *Rogers Lambert,*who advanced the purchase money, or what was equivalent. • They must be considered as tlie real owners. The defendant is a mere nominal purchaser, at their request, and for their benefit.* It is not necessary for the wife of a trustee to join in a conveyance; for she cannot claim dower in the trust estate.†

2. The deed executed by the defendant was according to the contract; he was not bound, by the terms of the agreement, to give a deed with covenants or warranty ; and, being a mere nominal owner, he could never have intended to bind himself to warrant the title.‡

3. The defendant, as agent or trustee, had paid over all the money he had received, before the contract was rescinded, and he cannot, therefore, be now called on to pay it to the plaintiffs.§

4. The plaintiffs have voluntarily rescinded the contract, and have, therefore, no right to recover back what they have paid in part performance.

5. But even, if the plaintiffs Were entitled to recover, the evidence offered by the defendant to reduce the amount of damages claimed, ought to have been received. The plaintiffs had the use of the property, and ought to pay for ‘that use. There was no necessity of pleading, or giving notice of this. The de'fendant had a right to sell the property, after the plaintiffs refused to accept the deed.

*Oahly,*contra.

1. The deed tendered by the defendant was hot such a deed as the plaintiffs were entitled to, under a fair construction of the contract. He had, therefore, a right to regard the contract as rescinded. He was entitled to a deed with the usual covenants, ft is true, that the court, in the case of *Van Eps*v. *The City of Schenectady,**ǁ***have recently decided, that an agreement to execute a deed of land was satisfied by a deed without warranty or covenants, a decision of which I was not before aware ; but I did suppose that the grantor, under an agreement of this kind, was, at least, bound to covenant against his own acts;** but the deed offered was a mere quit-claim, without any covenant whatever.

*362Again ; the deed was not executed,.by the wife of the defend-, ant. ■ in-Jones v. *Gardner******the court 'held that, the tedder of & deed ndt signed by the wife of the grantor, and whickdid not embrace all the land of the farm sold', was not a performance of, a covenant to convey. Jt is- true, that- á Court of equity would' relieve against a claim,.of 'do.wer by’ the wife óf at trustee..But the defendant had held-the,premises'for some time, .and Was the legal-owner.. It was a resulting trust,, resting in pared», .and it .would-be hqrd to oblige the vfendee to preserve evidence of that trust» to repel, - at- any time hereafter, á claim of dower.

The defendant having, by his sale of the premis.es to *Mlefy*put it out Of his, power to convey to. the plaintiffs, has voluntarily: abandoned the contract with them» and ought to refund the money be has received.† The cases as to a vendor’s power to fe-* sell the property arid claim of the first vendee, the difference in price relates;to personal, not.to real estate. , . / :

Tire doctrine as to an agent paying over, the money to his principal, cannot apply here. The defendant has not, in fact» paid over. any. money. ,A mere promise’ to pay Over is hót equivalent to,an actual .payment.‡ . Besides, in such cases# there should *be notice*that the money has been pafd over. ’

3. The-defendant acting as an agent or trustee generally, in regard .to |his'business, and contracting personally, is liable-on his personal contract.§ The.agreement contains no mention of -any trust,, nor'any reference to a principal, but is wholly in the name of the defendant, and he might, in equity», have been compelled to a specific performance of the Contract, : lie does not appear in th'é character of an,agent; he was the sble legal, owner of the property, and appeared as principal in the transaction, throughout.

4. .As to the claim for the tssé and occupation; where a.party refuses to perform a contract, and voluntarily abandons it,, fie virtually abandons all collateral .benefits or advantages, derivéd from use, or occupation, or improvement. It is as if the contract fiad, never been made, This principle’,was laid down in tfie cáse *oí Gillet*v. *Maynard.*

D. *B. Ogden,*in reply,

said,, that this-was, in truth, an‘'action brought-by a party who, had-violated, or voluntarily rescinded, his contractfto recover back the money’he had paid; but that'a part could never make a breach oí his own contract the foundation *363of an action. That the defendant .was a trustee was a fact known to all the parties; and the execution of the deed by the wife of the defendant was, therefore, wholly immaterial. The boundaries of the land being according to the mortgage, the plaintiffs were bound to accept the deed, if so, they cannot maintain this action. After their refusal, the defendant had a right to pell the land.. He sold it for 1,500 dollars less than the sum .which the plaintiffs stipulated to give; and he might well call. on them to pay that difference, rather than be subjected to an action for the money they had" advanced. 'The payment of the jnoney received on the. prior mortgage was for the benefit of *Rogers 8c Rambert,*and equivalent to a payment directly to them.

*

1 *Johns. Rep.*45. n. *Jackson*v. Sternbergh, 1 *Johns. Cas*153. 3 *Johns. Rep.*21611 Johns. *Rep.*91.

†

 1 *Cruise's Dig.*334. s 24 *Sugd. L. of Vend*218, 219. *2 Ves. 631. 632. 2 Freeman's Rep.*43. 71. *Co. Litt*31.

‡

**12 Johns. *Rep.*436.

§

7 Johns. *Rep.*179 1 *Chitty's Pl. 25.*

ǁ

12 *Johns Rep. 436.*

**

*Sugd. Law Vend*296. 2 Id.*& P. 283.*

*

*10 Johns. Rep. 266.*

†

*Gillet v. Maynard,*5 *Johns. Rep.*85.

‡

 Cowp. 565.

§

*1 Comyn*on Contracts, 252, 253. 5 East, 148. 2 Keb. 136.

Spencer, J.,

delivered the opinion of the court, The plaintiffs seek-to recover of the defendant 700 dollars, paid upon á contract for the conveyance of a farmand it is.contended, that the defendant has violated the contract in several respects : 1st, In this, that the deed executed by the defendant contains no covenants of warranty2d. That the defendants wife has not executed and acknowledged, the deed; and, 3d. That the boundaries' specified in the deed do. not 'embi’ace all the lands constituting the farm at the *Four*Corners. ’ .

: It appears, that the defendant executed a deed of the lands, included in a mortgage given by *Haight*to *Rogers & Rambert,*which’ deed was ready to- be delivered at the office of *Rudd*Evertson, in Poughkeepsie, on the first'day of *May,*1811; but the plaintiffs did' not then, or' on"any subsequent day, receive the same, and perform the covenants which were simultaneously to be obsei’ved; the plaintiffs insisting on the preceding objections. It also appeal’s, that the plaintiffs, who had taken possession of the farm contracted to be sold, abandoned the possession, and refuséd to perform their part of the contract; and that, subsequently, the defendant sold the same for a less sum than the plaintiffs .bad contracted to give. These are the material facts in the case, and I apprehend there is no ground for the plaintiffs’ recovery.

. The defendant stipulated *to give a deed of*the premises contracted to be sold to the plaintiffs; this covenant is fulfilled, by-executing a conveyance of the - property without - warranty, or personal covenants. The case of *Van Eps*v. *The Corporation**364*of Schenectady, .(12 Johns.*Rep. 436.,)' decides-this pointy If other ré'asons were necessary to show }the proprie ty of that de-»' cisión, than those stated in that-'case, they at once -suggest theniselves ;■ courts of--few ’can exact no more of parties-thfifr the, performance of their contracts, according to the'intention manU fested :by the terms used by them. '^then,.therefoFe, 'ii-is.,agre.ed .- ffiát a deed shall be given, nothing 'more can, be'hxacted than, «• an instrument sufficient to pass, the estate of-the parity who.-is" to, give a deed.' If it ■ be required 4hat the deed should contain Covenants of warranty, nothing is more simple than- the insertion'of that stipulation in the contract.. Courts are not to amend or alter the contracts "of parties.and to construe an: agreement-to give a deed’of a piece of land, to be also an agreement -to insert awarranty, would be exacting, morethan the agreement specifies, 'A-^deed does not,-, ot *vi termini,*mean a deed- with,. covenants of warranty, but only an instrumént with apt terms, conveying-the property sold. : :

These observations equally apply- to the second point. The defendant alone -was to give a deed ; theagreement is silent as to. the defendant’s wife uniting in the conveyance, and it would bean entire interpolation to say, that the defendant agreed that his, rwife-should join in the deed, filad the agreement been,-that the defendantshould, by deed, vest the title to the lands sold, in the plaintiffs, then the plaintiffs would have had a right,.if. the entire, legal title was in the defendant, so. that the wife might-have been ■endowed iof the' land, in case of hqr survivorship, to insist on -her joining in. the deed. It-is not necessary'to--'say,- that the de-fendant had such, an estafe,' as that the wife might have been endowed, the agreement not giving-rise to that question. . The agreement evidently contemplates, that-the deed to be given: by -.the defendant shall be-for the place called *th,e Four -Corners,*As included in-the mólitgagé given by *Haight*to; *Rogers ¿f> Lam~ hert;*-a deed, then, adopting the boundaries and description iii the. mortgage,, was a compliance with the contract, and it is. admitted, ■ that (he deed executed was according to the mortgage.

The defendant, then,-has complied with hia agreement in all re. . spects ; and yet the plaintiffs, who hav.e paid 700 dollars on the contract, and have; totally refused to perform their part of the. contract by accepting the deed,, and giving a mortgage,’seek to recover back the money thus paid, on'the .' ground that the, defendant has sold t.he farm', and- thus rescinded the. contract,:

*365Where there is no agreement *subsisting*between the parties, "but the same has been put an end to, by the election or refusal of the defendant to perform it, in general, the other party may. recover back any money paid by him in part performance. This was so decided in *Raymond and others*v. *Bearnard,*(12 *Johns. Rep.*274.)

It may be asserted, with confidence, that a party who has advanced money, or done an act in part performance of an agreement, and then stops short, and refuses to proceed to the ultimate conclusion of the agreement, the other party being ready and willing to proceed and fulfil all his stipulations, according to the contract, has never been suffered to recover for what has been thus advanced, or done. The plaintiffs are seeking to recover the money advanced on a contract, every part of which the defendant has performed, as far as he could by his own acts, when they have voluntarily and causelessly refused to proceed, and thus have, themselves, rescinded the contract.

It would be an alarming doctrine, to hold, that the plaintiffs ..might violate the contract, and because they chose to do so, make their own infraction of the agreement the basis of an ac- ■ tion for money had and received. Every man who makes a bad bargain, and has advanced money upon it, would have the same right to recover it back that the plaintiffs have. The defendant’s subsequent sale of the land does not alter the case; the plaintiffs had not only abandoned the possession, but expressly refused to proceed, and renounced the contract. To "say that the subsequent sale of the land gives, a right to the plaintiffs to recover back the money paid on the contract, would, in effect, be saying, that the defendant could never sell it, without subjecting himself to an action by the plaintiffs. Why should he not sell ? The plaintiffs renounced the contract, and peremptorily refused to fulfil jt; it was in vain, therefore, to keep the land for them. The plaintiffs cannot, by their own wrongful act, impose upon the defendant the necessity of retaining property which his exigencies may require him to sell; this would be most unreasonable and unjust, and is not sanctioned by any principle of law. There must be a new trial, with costs to abide the event of the suit.

New trial granted.