Moore v. Williams

• Decision Date: 08 October 1889
• Citation: 22 N.E. 233,115 N.Y. 586
• Parties: MOORE v. WILLIAMS et al.
• Court: New York Court of Appeals Court of Appeals

115 N.Y. 586

22 N.E. 233

MOORE

v.WILLIAMS et al.¹

Court of Appeals of New York.

Oct. 8, 1889.

Appeal from superior court of New York city, general term.

Action by Maurice Moore against Perry P. Williams, impleaded with William H. Guion, to recover back a payment made on a contract for the purchase of land. Judgment for plaintiff, and defendants appeal.

VENDOR AND VENDEE-VENDOR'S TITLE.

Defendants made a contract for the sale of land to plaintiff, who agreed to assume a certain mortgage outstanding against it. Defendants' title rested on a deed to them, which recited that the grantor was seised in his own name, but in the right of, and for the use and benefit of, a certain firm. The grantor held under a proper deed to himself. A judgment was recorded against him while the title was in him, but there was parol evidence that he had purchased with money of the firm, and held the land as firm property. Plaintiff refused to take a conveyance on account of the judgment lien. Held, that defendants could not give such title as was plaintiff's right, and plaintiff could recover a partial payment made.²

Geo. Zabriskie, for appellants.

Maurice S. Cohen, for respondent.

EARL, J.

The defendants, describing themselves as trustees, on the 8th day of December, 1884, entered into a written contract with the plaintiff to sell to him a lot of land known as ‘No. 247 Fulton Street,’ in the city of Brooklyn, for the sum of $25,000. The plaintiff, at the time of executing the contract, paid upon the purchase price the sum of $250, and he was to pay $2,250 more upon execution and delivery to him of the deed on the 15th day of January, 1885, and he was to take the lot subject to a mortgage thereon for $22,500. The defendants agreed to give him a proper deed of bargain and sale for the conveyance, and assuring to him the feesimple of the lot subject to the incumbrance of the mortgage. The plaintiff subsequently refused to complete his purchase, on the ground that the title tendered to him by the defendants was not clear and perfect, such as he was entitled to receive under the contract, and he commenced this action to recover the installment of $250 paid by him, and $406.14, the amount paid by him to counsel for examining the title. The title came to the defendants from William H. Guion by a deed dated August 1, 1884, which recites that the firm of Williams & Guion, in liquidation, is indebted to the estate of John S. Williams, deceased, in the sum of $105,000, and interest from August 2, 1882, and that Guion and the firm are desirous to receive the payment thereof; and also contains the following recital: ‘Whereas the said William H. Guion is seised of the lands and premises hereinafter described in his own name, but in the right of, and for the use and benefit of, the said firm of Williams & Guion.’ Then, by apt and proper words, the deed conveys the premises in question, with other real estate, to the defendants, in trust to sell the same, and pay the recited indebtedness out of the proceeds. Guion's title to the lot came from Anson B. Moore and George E. Apsley, who conveyed the same to him by a deed dated, acknowledged, and recorded in February, 1883. While the title was thus in Guion, on the 2d day of February, 1884, Demas Barnes recovered and docketed a judgment against him for $4,035.14, and that judgment became an apparent lien upon the lot.

The claim of the plaintiff is that, on account of the existence of that judgment, the defendants were unable to give him such a title as he had the right to demand, and that therefore they could not perform their contract, and that he was entitled to recover the amount of his payment, and the expense of examining the title. The defendants claim and give evidence tending to establish that Guion took title to the lot for the firm of Williams & Guion, and paid for the same with firm property, and that the lot, at the time of the recovery of the judgment, although the title thereof stood in the name of Guion, was in fact, as between him and the firm, the property of the firm; and they therefore contend that the judgment never became a lien on the lot, and that the title tendered to the plaintiff in performance of their contract was in fact perfect.

The defendants attempted to get Barnes to release the lien of his judgment upon the lot, but he refused to do so, and it still remains an apparent lien thereon. There is no record or document which precludes Barnes from enforcing his judgment against the lot. The recitals in the deed of Guion to these defendants do not bind him, and are not evidence against him, a prior incumbrancer. All the evidence to defeat his lien rests in parol, and depends upon the memory of living witnesses. Whenever Barnes attempts to enforce his lien against the lot, he can be defeated only by a resort to the evidence of such witnesses who may then be dead or inaccessible. He may, at any time within 10 years, issue execution upon his judgment and sell the lot, and after the lapse of many years the purchaser at the execution sale may bring an action of ejectment to recover the lot, and the burden would be upon the defendant in that suit to establish, by the parol evidence, the invalidity of the title of such purchaser.

We will assume that the lot, while the title stood in the name of Guion, actually belonged to the firm of Williams & Guion; that thus the defendants actually had a good title to the lot; and that the judgment was not in fact a lien thereon. But is a purchaser bound to take a title which he can defend only by a resort to parol evidence, which time, death, or some other casualty may place beyond his reach? By the express terms of the contract of sale the plaintiff was entitled to a deed conveying and assuring to him the lot in feesimple; and, by a fair construction of the language used, we think he was entitled to the lot free from any incumbrance except the mortgagespecified. The express stipulation that he was to take the lot subject to an incumbrance specified shows that in the minds of the parties there was to be no other incumbrance upon the lot. But, aside from the language used in the contract, it is familiar law that an agreement to make a good title is always implied in executory contracts for the sale of land, and that a purchaser is never bound to accept a defective title, unless he expressly stipulates to take such title knowing its defects. His right to an indisputable title clear of defects and incumbrances does not depend upon the agreement of the parties, but is given by the law. Sugd. Vend. (13th Ed.) 14; Rawle, Cov. 430; Burwell v. Jackson, 9 N. Y. 535;Delavan v. Duncan, 49 N. Y. 485. Within the meaning of this sale, at least according to the decisions in this state, a good title means, not merely a title valid in fact, but a marketable title, which can again be sold to a reasonable purchaser, or mortgaged to a person of reasonable prudence as a security for the loan of money. A purchaser will not generally be compelled to take a title when there is a defect in the record title which can be cured only by a resort to parol evidence, or when there is an apparent incumbrance which can be removed or defeated only by such evidence; and, so far as there are any exceptions to this rule, they are extraordinary cases, in which it is very clear that the purchaser can suffer no harm from the defect or incumbrance. In Swayne v. Lyon, 67 Pa. St. 436, SHARSWOOD, J., said: ‘It has been well and wisely settled that, under a contract for the sale of real estate, the vendee has the right, not merely to have conveyed to him a good title, but an indubitable title. Only such a title is deemed marketable; for otherwise the purchaser may be buying a lawsuit which will be a very serious loss to him both of time and money, even if he ultimately succeeds. Hence it has been often held that a title is not marketable when it exposes the party holding it to litigation.’ In Dobbs v. Norcross, 24 N. J. Eq. 327, it was held that ‘every purchaser of land has a right to demand a title which shall put him in all reasonable security, and which shall protect him from anxiety, lest annoying if not successful suits be brought against him, and probably take from him, or his representatives, land upon which money was invested. He should have a title which shall enable him, not only to hold his land, but to hold it in peace, and, if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value.’

If the plaintiff had been a purchaser at a judicial sale, and this had been a proceeding against him to compel him to take the title, or a proceeding by him to be relieved from his purchase, and to have his deposit refunded, it cannot be doubted that the title would have been held so defective or doubtful that the court would have granted him relief. Jordan v. Poillon, 77 N. Y. 518;Fleming v. Burnham, 100 N. Y. 1, 2 N. E. Rep. 905; Toole v. Toole, 112 N. Y. 333, 19 N. E. Rep. 682; Ferry v. Sampson, 112 N. Y. 415, 20 N. E. Rep. 387. If the vendors here had brought an action against the vendee to compel specific performance of this contract, it is equally clear that they would have failed in the action. The court would not compel the vendee to take the title with the cloud of this incumbrance resting thereon. Marlow v. Smith, 2 P. Wms. 201; Sloper v. Fish, 2 Ves. & B. 149; Shapland v. Smith, 1 Brown, Ch. 75; Jeffries v. Jeffries, 117 Mass. 184; Seymour v. De Lancey, Hopk, Ch. 436; Hinckley v. Smith, 51 N. Y. 21; Freetly v. Barnhart, 51 Pa. St. 279; 3 Pom. Eq. Jur. § 1405. But this is an action at law, and it has sometimes been held that the distinction between good and marketable titles is peculiar to courts of equity; that it is unknown in courts of law; and that there the question is, simply, is the title good or bad? The earliest case which has come to our attention holding such a dectrine is Romilly v. James, 6 Taunt. 274,...