#### Caswell *against*The Black River Cotton and Woollen Manufacturing Company.

NEW-YORK,

October, 1817.

An agreementwas entered Í8i7,J“orr'vthe veyance of land, Part the consideration be paid on the ist of Marchensuing, and the residue to^be “hicifIfme the execüte"aSconlanTlmat that eTMVÍUmort-’ the vendee had vendee went into possession the land, removed a nursery and some tmiidingsfrom it, and made .several pídale°f mí ecutioíoíthé gagí w”s post-at consent. In 1817, the land not having been sold under the prior mortgage, the vendee brought an ac-on^moíít ayyj>" aípsíof time! líwpanípa"! with notice of brance.'thevenrescind the contract, especial-)y as.be could not put the vendorins^i»»TM, but that if he did intend to

cause the vendor could not make a good title, he ought to have expressed his determination at the time when the first payment became due; and that his remedy was in equity and not at law. If, however, the land had been actually sold under the prior incumbrance, before the commencement of the could

THIS was an action of assumpsit, brought to recover back money paid by the plaintiff to the defendants, on an agreement for the sale and conveyance of land by the latter to the former, i *J*The cause was tried before his honour the chief iustice, at the *° Jefferson*circuit, in *June,*1817. *d>** *1*

The defendants, by ah agreement dated the 19th *January,*1814, executed by their authorized agent, agreed to sell and convey, by good deed, to the plaintiff, certain premises in *Watertown,*in the county of *Jefferson,*containing fifty acres, with the buildings thereon ; the deed to be given when the first payment was made, and the remainder to be secured by mortgage. The whole of the purchase money was to be 3,600 dollars; of . 1 . - t _ - _ which 1.200 dollars were to be paid on the 1st or *March*next after the date of the agreement; 1.200 dollars in three years ° *7*7 e *J*from the said 1st of March, and 1,200 dollars in three years thereafter, with interest on the whole, payable annually on the 1st of *March.*On the agreement, receipts were indorsed, of the payment of 1,200 dollars, on the 1st of *March,*1814; of two payments of interest due on the 1st *March,*1815 and 1816, and of 500 dollars, paid on the 3d *March,*1817. The first payment, , ’ 1 , , , , ... , , however, was not made on the day when it became due, but was , postponed by the consent of the parties.

The premises were part of a larger tract, purchased by the defendants of one *Foster,*who had purchased the same of *Jewitt,*and given him a mortgage on the property; and default having been made in the payment, *Jewitt*had, on the 10th *May,*1817, advertised the mortgaged premises, funder the power in the mortgage, for sale, on the 15th *November.*The plaintiff, at the time of making the agreement for the purchase, had notice of this incumbrance. The plaintiff took possession of the prerni- , . . , ses, and was in possession at the time of the trial. In the spring , i i. r , of 1816, he removed a nursery and some buildings from the ’ - o *458land ; and in the spring of 1817, the defendants caused it to be surveyed,.at the request of the plaintiff, who then proposed to receive a deed, and secure the residue of the purchase money, ■ a mortgage on property in *Oneida*county. The survey of the land and the execution of the deed a nd mortgage, pursuant to the agreement, had been postponed from time to time, since the first payment was made, by mutual consent. On the 16th *May,*1817, a few days after the survey, a deed, duly executed by the defendants, was tendered to the plaintiff, on their behalf, and a demand made of the money due and the mortgage; but the plaintiff refused to accept the deed. ' The suit was commenced in *June,*1817, and such proceedings had, by consent, that it was brought to trial at the *Jefferson*circuit, in *June*last.

A verdict was taken for the plaintiff, by consent, subject to the opinion of the court, on a case which .contained a stipulation, that if the plaintiff was not entitled to recover, judgment should be rendered for the defendants, for the balance due on the agreement, being 895 dollars and 24 cents.

*Storrs,*for the plaintiff.

There is no difficulty as to the construction of the contract in this case. The only question is, whether the plaintiff is not entitled to recover back the money he has paid. An agreement to give a good and sufficient deed, means an operative conveyance ; one that carries with it a good and sufficient *title*to the lands to be conveyed. The vendee is. not bound to accept a *doubtful*title.* in *Jones*v. Gardner,† the court said, that a covenant to convey a *title,*meant the legal estate in fee, free and clear of all valid claims,. liens and incumbrances whatsoever. In *Judson*v. *Wass,**‡***which is a case in point, the very question was .decided. It is there laid down, that if the vendee has paid part of the consideration money, according to the contract, and the vendor is unable to convey a good title, pursuant to the agreement, the vendee may disaffirm the contract, and recover back the money he has paid. No matter whether the plaintiff knew of the mortgage or not. *Van Ness,*J. in delivering the opinion of the court, in that case, says, the giving the note, deed, bond and mortgage, were all to be simultaneous acts : but even if it were otherwise, as the plaintiff" was not in a situation to convey a title, according to the terms of sale, the defendant was not bound to carry into effect the stipulations on his part. So in *Greenby*v. *Cheevers,**§***it was admitted by the court to be clear law, that if the defendant had *459waited until the day of payment arrived, and for executing the deed, and the plaintiff was not in a situation to convey a goed title, by reason of an outstanding mortgage which remained unsatisfied, the defendant would have a right to consider the con-*7*° > tract as at an end and rescinded. The same doctrine was again laid down, in *Tucker*v. *Woods,**and the case of *Judson*v. *Wass*. . . was referred to as establishing the principle for which we contend. [He was here stopped by the court.]

*Van Beuren,*(attorney-general,) contra.

The plaintiff, to entitle himself to recover in this action, must show either a breach of contract by the defendant, or fraud. In *Van Eps*v. *The*Corp*oration of*Schenectady,† where the covenant was to give a deed, the court said, that tendering a deed, without covenant or warranty, was a sufficient performance ; for an estate in fee may be created, without any warranty. So in *Ketchum*v. *Evertson,‡*where the agreement was to give a deed of the premises on a certain day, and the defendant tendered a mere *quit claim*deed, at the day and place specified in the agreement, the court held it to be a good performance of the contract; and the court lay down the rule, that a party who has advanced money, and done an act in part performance, and then stops short, and refuses to proceed to a completion of the agreement, the other party being ready and willing to perform on his part, cannot recover back the money he has paid, or compensation for what he has done. An outstanding mortgage is no breach of the covenant of seisin.§ The defendant here executed and tendered a good deed, which was all they covenanted to do. In *Nixon*v. Hyserott,ǁ it was decided, that a conveyance or assurance is good and perfect, without warranty or personal covenant.

If a sale of a chattel is sought to be rescinded, on the ground of any defect, the property must be returned to the vendor, before the vend&e can bring his action to recover back his money. Here, the plaintiff is in the possession of the land, and has removed a nursery and buildings. If the plaintiff recovers back his money, how are the defendants to be compensated for the use and occupation of the property, or for the waste and damage committed while in the plaintiff’s possession ? He ought first to have given up the possession of the land, and put the defendant in the same situation in which he sood at the time the contract was made. In *Hunt*v. *Silk,*******which was an agreement for the lease of a house, the court of icing’s Bench held? *460that a contract could not be rescinded by one. party, for the de^ie other, unless both parties can be put in *statu quo,*as before the contract.

Again, the plaintiff has paid the money on the contract, with a full knowledge of all the circumstances.*

*Storrs,*in reply.

In *Nixon*v. *Hyserott,*an attorney was authorized to sell and to-execute conveyances and assurances in the law; and the court held that this authority was to be strictly pursued.

The rule, as to returning property by the vendee before bringing an action to recover back the money he has paid, applies only to a sale of chattels, and has no application to contracts for the sale of land. Suppose the defendants had filed a bill in equity, for a specific peformance of the contract, would not that court have immediately dismissed the bill ? It is a settled rule of that court, that a purchaser is not bound to accept a doubtful title, or take an estate which the court cannot warrant to him.†

*

*Claute v. Robison*2 *Johns. Rep*595. 815.

†

 10 *JohTis.*Rep. 266.

‡

 11 *Johns. Rtp.*525.

§

9 *Johns. Rep.*128;

*

12 *Johns.*Rep. 190.

†

*w Mm. Rep.*436-442-

‡

*13Mm. Rep.*

§

 7 *R^*37S-

ǁ

 , „ t 58-

**

 5 *Emi,u%*‘

†

*sug. l. of v.*69?"6?! 2¡“fv! (Tmi. 198. 1 *Vesey,jun,*565.

Van Ness, J.,

delivered the opinion of the court. The deed in this case was to be given on the first of *March,*1814, when the plaintiff was to make the first payment, and to execute his bond and mortgage for the balance. On that day, he paid twelve hundred dollars, pursuant to the contract; and he also discharged the interest upon the balance on the first days of *March,*1815, and 1816; and on the third of *March,*181T, when the' second instalment.had become due, he paid the further sum of five hundred dollars. The plaintiff also took possession of the property, with the consent of the vendors, soon after the contract was made, and has continued in possession ever since; and while he was so in possession, he removed a nursery, and some buildings on the premises, to another place.

The question now is, whether, or not, under such circumstances, the plaintiff is at liberty to abandon the contract, and can recover back his money, by this action ? J think he cannot. In giving my opinion in this case, I confine myself to the facts which characterisept; because, in this class of suits, every case depends so much upon its own peculiar facts and circumstances, that it is unsafe to lay down any general principles. All the cases which have been cited in support of this action, are distinguishable from this case. That of *Judson*v. *Wass,*(11 *Johns. Rep.*525.) which was very much pressed upon us, *461was a suit by the vendor to recover the money for which the land had been sold, and was decided upon principles not at all applicable to this case. The purchaser there embraced the first opportunity that was offered to disaffirm the contract. The plaintiff in this case was bound to make a stand when his first payment fell due, and if the defendants were not then in a situation v> convey to him a good title to the land, exonerated ft or,: tir mortgage to *Jewitt,*and every other incumbrance upon it, he might, at that time, have put an end to the contract; and if any payments had been previously made, he could have recovered them back. Instead of this, with full knowledge of the mortgage, and without demanding a conveyance, but, on the contrary, agreeing to postpone the execution of it, he made his payments, as they, from time to time, fell due, down to 1817, when he paid five hundred dollars more. In addition to this, he entered into possession, removed a nursery, and some buildings, and treated the property in every respect as his own. During this period, also, he made a proposition to pay the defendants the whole consideration, by assigning to them a bond and mortgage. After such a series of acts in affirmance of the contract, I think, at law, there is an end to the privilege of rescinding it, and of the right to recover back the money voluntarily paid upon it.

The case of *Hunt*v. *Silk,*(5 *East,*449.) is very like the present, and in point; and I fully accede to the doctrine there laid down. The plaintiff, here, cannot put the defendants in *statu*quo, in consequence of his own acts; and to allow him, at this distance of time, to say that he will not take the land, but will have his money back again, would be going further than any case has yet gone, and is neither required by sound policy, nor any principles of justice. If the plaintiff may now rescind the contract, I see no reason why he may not do it ten years hence, and after he has paid all the money, provided *Jewitt*should not, in the meantime, have foreclosed his mortgage. If the land had been actually sold under that mortgage before this suit was commenced, the case would have been materially different; for then the defendants would not have been able to give any title at all.

This is a proper case for a court of equity, where perfect justice can be done to both parties.(a) Unless *Jewitt*has fore*462closed his mortgage, the plaintiff has no remedy at law. The court of chancery can compel the defendants to give a good title, and if they are not able to do so, that court would order theta to refund the money they have received, deducting such sum for the use of the land and the deterioration of it by the plaintiff, if it be deteriorated by him, as would be just and reasonable. The defendants are entitled to judgment, pursuant to a stipulation in the case, for the sum of 895 dollars and ~24 cents.

Judgment for the defendants.

(a)

 Vide v. *Johns. Chan, Rep.*132, 274. 357. 370.

*

4 *Johns. Rep.*240. 2 *East,*469. 1 *Mass. cTs' %\*1 *£ip‘*