Clark v. Post

• Decision Date: 05 March 1889
• Citation: 20 N.E. 573,113 N.Y. 17
• Parties: CLARK v. POST et al.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 17

20 N.E. 573

CLARK

v.POST et al.¹

Court of Appeals of New York.

March 5, 1889.

Appeal from supreme court, general term, Second department.

This action was brought against the executors of James R. Huntting, to recover back money paid to him upon a consideration which had failed. The plaintiff recovered a verdict. A motion for new trial was denied at special term. From the order then made, and from an order awarding costs to the plaintiff, and from the judgment entered upon the verdict, the defendants appealed to the general term, where all were affirmed, and from the judgment of affirmance the defendants appeal to this court.

Hamilton Wallis, for appellants.

Jesse Johnson, for respondent.

DANFORTH, J., ( after stating the facts as above.)

It appears that William Buck and William Buck, Jr., became bankrupts, and on the 3d of July, 1877, Huntting was appointed their assignee. At that time Sibyl T. Buck, wife of William, had the title to certain real estate in Sag Harbor, and, to facilitate a compromise then under consideration, conveyed it to Huntting as assignee, by deed absolute in form, but upon parol condition that it should be void and of no effect if the proposed compromise fell through. It did fail. Afterwards (February 13, 1878) Huntting, as assignee, offered the real estate for sale at auction upon certain terms, and, among others, (1) that 25 per cent. of the purchase money should be paid down, and for which a ‘receipt would be given;’ (2) the residue to be paid July 23d, at the office of Carpenter, his attorney, when the deed ‘will be ready for delivery.’ Other conditions usual in such sales, but not now important, were imposed. The plaintiff by her agent bid for and became the purchaser of the premises at the price of $3,500, and signed the conditions of sale. Before offering the property, however, but at the time of the sale, the assignee stated that he had a good title to it, and could and would give a good title to the purchaser thereof, as against the bankrupts and as against Sibyl T. Buck. These facts are alleged in the complaint, and it is also stated that the plaintiff bid off and purchased the property, and paid for it, and accepted a deed therefor, relying on that statement, and in consideration thereof, and ‘upon the express understanding and condition that ths said Huntting would indemnify and protect her against any interest in or title to said premises which might thereafter be legally established and enforced by the said Sibyl T. Buck, and not otherwise.’ On the 21st of February, 1880, Sibyl brought an action against Huntting and this plaintiff, and others, to recover the premises, on the ground that the condition on which she had given the deed had happened, and so the consideration had wholly failed. During its pendency Huntting died, and his executors were substituted in his place as defendants. The suit was decided in favor of Sibyl, and it was adjudged that her title was good, and she entitled to a reconveyance. The plaintiff (purchaser of the property) was therefore compelled to surrender possession to her. There was no suggestion or pretense that the testator acted fraudulently or with intent to deceive.

The defendants put in issue the making of the representations alleged in the complaint, but did not deny the other material allegations to which I have referred. Upon the trial the plaintiff was not called as a witness, but her husband, who acted as her agent in making the purchase, was called in her behalf, and testified that at the sale he asked ‘what kind of a title the assignee proposed to give on that property.’ At that point defendants' counsel interrupted, and said: ‘I object, on the ground that, whatever his statements, they were merged in the written contract.’ The objection was overruled, and an exception taken, and the witness continued: ‘He said they would give a title that would hold against William Buck, Mrs. Buck, William Buck, Jr., or any other Buck. Those were his words.’ After the sale a deed was prepared and delivered, unsigned, to the witness as agent for his wife, and he, having heard that a sale of other property by the assignee was to be resisted by Mrs. Buck, examined the deed, and objected to it, on the ground that it did not contain proper covenants. He ‘could not see that it contained any warranty.’ He then saw Huntting; told him he did not think he would take the deed; did not feel it safe to do so, and thought he would throw it all up. Huntting said he hoped he would not do that. The witness, after objection, continued: ‘I told him that I thought I would not take the title; that I had fully decided not to take it. Mr. Huntting said that he hoped I wouldn't refuse to take the deed, for to sell it over again would injure the sale of it very much, and he hoped that I would take it. Well, I told him then that if he would agree to hold the money that I had paid in the interest of my wife for that property until her ‘pretended claim,’ as he called it, was decided, that I would take the deed. Mr. Huntting I was very well acquainted with, and supposed it would be all right. He said that he would do so. He said that he would do so to protect me, and also to protect himself; and I told him if he would do that I would take the deed in the interest of my wife.' The defendants' counsel asked to have so much of the testimony of this witness as is italicized stricken out, on the ground that there is no allegation of anything of the kind in the complaint. The request was denied, and an exception taken. Afterwards the witness says: ‘I paid the balance of the money, and took the deed.’ The defendants gave evidence controverting the statements of plaintiff's witnesses as to representations at the time of the sale.

The jury, however, in answer to specific questions put to them by the court, adopted the plaintiff's version, and, concerning the conversations stated by witness Clark to have occurred after the sale and before he accepted the deed, found that they did occur. The appellants' contention was that the evidence was not sufficient, in any view, to justify a recovery. They asked for a nonsuit, and were denied.

1. The notice of sale and the conditions of sale were attached together, and signed by the parties. They constituteda memorandum of what each was to do, and by it both were bound. In it, as in other contracts for the sale of land, there was an implied warranty by the vendor that he had a good title. This warranty, however, existed only so long as the contract remained executory,andthere was no other obligation than to give a conveyance without warranty or personal covenant, but sufficient to pass whatever right the vendor had in the lands to the purchaser. When the deed was given, the covenant actually implied into the contract was discharged, and the covenants in the deed, if any, took effect. In like manner, the conversation between the parties, and the words which passed between them before the conditions of sale were signed, merged in that paper. These results follow from the general principle that all negotiations between the parties prior to or contemporaneous with the execution of a deed are merged in it. The deed given by the assignee contains no warranty. The learned counsel for the respondent admits that it contains no formal warranty, but he...