48 N.Y. 193, Thomas v. Bartow

Citation:48 N.Y. 193
Party Name:JAMES S. THOMAS, Appellant, v. CHARLES BARTOW AND WIFE, Respondents. JAMES STICKNEY, Appellant, v. CHARLES BARTOW AND WIFE, Respondents.
Case Date:January 01, 1872
Court:New York Court of Appeals

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48 N.Y. 193

JAMES S. THOMAS, Appellant,





New York Court of Appeal

January 1, 1872

Argued Sept. 20, 1871.

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Francis Kernan for appellant. There is no implied warranty of title in the assignment, as it is an executed, not an executory contract. ( Houghtaling v. Lewis, 10 Johns., 297; Bull v. Willard, 9 Barb., 641; Ware v. Westfall, 21 Id., 177; Carr v. Roach, 2 Duer, 20; 3 R. S., 5th ed., p. 29, § 160.)

Samuel Hand for respondent. An assignee of a mortgage takes it subject to every defence that could be made if it remained in the hands of the mortgagee. ( Bush v. Lathrop, 22 N.Y. 532;

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Cowdry v. Coit, Com. of App., June term, 1871.)The assignment of the McPhierson contract contained an implied warranty of title. ( Purvis v. Rayer, 9 Price, 488; Sauter v. Drake, 5 Barn. & Adol., 992; Doe v. Stanton, 1 Mees. & Wels., 695; Sug. on Vendors, chap. 1, § 3, art. 17; Burwell v. Jackson, 5 Seld., 535.) McPhierson's want of title was a breach of this implied covenant and a good defence. ( Talmadge v. Wallace, 25 Wend., 107; Johnson v. Gere, 2 Johns. Cas., 546.) Where a party purchases and receives a quitclaim deed, supposing there is a title when in fact there is none, he can recover back or refuse to pay purchase-money on ground of mistake in fact. ( Martin v. McCormick, 4 Seld., 331; Gardner v. Mayor of Troy, 26 Barb., 423; Hitchcock v. Geddings, 4 Price, 135.) The defendant had no rights and owed no duties under the Atchison contract. ( Adams v. Wadhams, 40 Barb., 225.) It was optional with the defendant to pay on the McPhierson contract, or seek his remedy on Wadhams' covenant, or by defence to the bonds and mortgages. ( Winslow v. McCall, 32 Barb., 241.)


The Supreme Court as well as the referee seem to have overlooked the fact that when, on the 4th day of March, 1854, the contract was made by which Wadhams agreed to cause the several lots embraced in it to be conveyed to Bartow, that Bartow knew that only one of the five lots was owned by Wadhams, and that the only title he had to lot No. 7 rested in a contract with McPhierson, upon which there was unpaid $2,675, which, when paid, entitled Wadhams, or such person as he might appoint, to a sufficient deed of conveyance of that lot. From the fourth to the tenth of January, some six days, the contract between Wadhams and the defendant Bartow remained executory; then, to end it, or, as the defendant states it, "in consummation" of it, he...

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