Ewing v. Wightman

• Decision Date: 14 May 1901
• Citation: 60 N.E. 322,167 N.Y. 107
• Parties: EWING v. WIGHTMAN.
• Court: New York Court of Appeals Court of Appeals

167 N.Y. 107

60 N.E. 322

EWING

v.WIGHTMAN.

Court of Appeals of New York.

May 14, 1901.

Appeal from supreme court, appellate division, First department.

Action by Henry O. Ewing, receiver of the Cardiff Coal & Iron Company, against George B. Wightman. From a judgment of the appellate division (65 N. Y. Supp. 187) affirming a judgment in favor of defendant rendered on a report of the referee, plaintiff appeals. Affirmed.

SALE OF LAND-ACTION FOR PRICE-TENDER OF DEED.

No action lies to recover on purchase-money notes representing deferred payments to be made on the conveyances of land sold, where no tender of the deed has been made to the purchaser; the agreements to convey and to pay the price being dependent.

Henry H. Whitman, for appellant.

William C. Cammann, for respondent.

CULLEN, J.

This action is brought to recover on a series of promissory notes made or indorsed by the defendant to the Cardiff Coal & Iron Company under a number of contracts by which said company contracted to sell and convey to Wightman certain parcels of land in the state of Tennessee. One of the defenses pleaded by the respondent was that these notes were delivered to represent the deferred payments to be made for said lands, upon the payment of which the lands were to be conveyed to him, and that the company at the day fixed for the conveyance of the land was unable to give the respondent title thereto, and tendered no deed or conveyance to him. The following are the forms of the contract and of the note, which bear the same date: ‘For and in consideration of the sum of four hundred and sixteen and 70/100 dollars ($416.70) in hand paid on the delivery of this instrument, the receipt of which is hereby acknowledged, and the further sum of eight hundred and thirty-three and 30/100 dollars ($833.30) to be paid in equal installments in six and twelve months from date, to be evidenced by two notes executed by the said bargainor hereinafter named, due and payable, respectively, six and twelve months after date, with interest from date, the Cardiff Coal and Iron Company, a body corporate under the laws of the state of Tennessee, has bargained and sold, and hereby agrees and binds itself to convey by deed in fee simple, with covenants of general warranty, on payment in full of the purchase money at the times and in the manner hereinbefore set forth, unto George B. Wightman, his heirs or assigns, a lot or parcel of lands lying in the 13th civil district of Roane county, Tennessee, being lot No. five in block thirty-four in the town of Cardiff, as shown by the plat of said town in the register's office of Roane county.’ Note: ‘$416 60/100. 12 months after date, I promise to pay the Cardiff Coal and Iron Company, or order, four hundred and sixteen and 60/100 dollars, for value received, with interest from date. This note is given in part consideration for land this day bought of the said Cardiff Coal & Iron Company, and a lien is retained on said land to secure the payment of this note. If this note is not paid at maturity, and is placed in the hands of an attorney for collection, _____ agreed to pay 10 per cent. attorney's fees, to be taxed as costs. This 30th day of April, 1890. George B. Wightman.’ The referee before whom the cause was tried rendered a short form of decision, in which he held that the agreements to convey the land and pay the notes were concurrent and dependent, and that the plaintiff could not maintain the action on the notes, as no tender of conveyance had been made to the defendant.

The unanimous affirmance by the appellate division leaves open for our determination but one question,-whether the payment of the notes and the conveyance of the land were dependent covenants. The law is firmly established in this state that, in a contract for the purchase of lands or for the sale of chattels, the covenant to convey or to deliver possession and the covenant to pay the purchase money, when concurrent in time, are dependent (Glenn v. Rossler, 156 N. Y. 161, 50 N. E. 785;Vandegrift v. Engineering Co., 161 N. Y. 435, 55 N. E. 941,48 L. R. A. 685), and that, even in case the purchase money is payable in installments, if the vendor awaits the maturity of the last installment, upon the payment of which a conveyance is due, he cannot maintain an action to recover any installment without first putting the vendee in default by tendering him a deed. Beecher v. Conradt, 13 N. Y. 108, 64 Am. Dec. 535; Morange v. Morris, *42 N. Y. 48; Thomson v. Smith, 63 N. Y. 301;Eddy v. Davis, 116 N. Y. 247, 22 N. E. 362. The contract of the Cardiff Company was not a present conveyance of the land, but an executory agreement to convey in the future on the payment of the purchase money; and the defendant agreed to pay in consideration of the actual conveyance of the land, and not in consideration of the mere obligation or executory contract of the vendor. Therefore, if the action had been brought on the contract, it could not, within the rule stated, have been maintained, because of the failure of the vendor to tender a deed; and the only question remaining is whether a different rule applies where, as in the present case, separate obligations in the shape of promissory notes are given for the purchase money.

Some learned text writers have asserted...