Porter v. Noyes

• Decision Date: 01 May 1822
• Citation: 2 Me. 22
• Parties: PORTER v. NOYES
• Court: Maine Supreme Court

2 Me. 22

PORTER v. NOYES

Supreme Judicial Court of Maine, Cumberland

May, 1822

[Syllabus Material]

THIS was an action of assumpsit for the non-performance of an agreement to purchase a farm of the plaintiff, lying in Boxford in the Commonwealth of Massachusetts.

At the trial, which was upon the general issue, the plaintiff relied for proof of the agreement, upon certain letters written to him by the defendant. From these it appeared that the treaty for the purchase commenced as early as November 1818,--that the defendant had offered 2200 dollars for the farm,--to pay 800 dollars on the first of April following, to clear off a mortgage outstanding, and to pay the residue in May,--that he should not want possession till the first of April following about which time he supposed the deed would be ready for delivery,--that he wished the plaintiff to bring the deed in person, or send it to Joseph Hovey's or to another place,--and wished the house to be cleared by the first of April; --adding, in his last letter, " If you accept of that offer, you shall make to me a warranty deed, free and clear of all incumbrances."

Hovey testified that the deed was sent to him in April bearing date March 29, 1819, and that the defendant, when notified of this fact, agreed to accept it, and made no objection on account of the lateness of the time.

The counsel for the defendant hereupon objected that it was incumbent on the plaintiff to have tendered or sent a deed to one of the places designated, on or before the first of April. But the Judge who presided at the trial overruled this objection.

The counsel then urged,--1st. that the title was not in the plaintiff, but in N. Coffin, at the time when the conveyance was to be executed; --2. that if Mr. Coffin had conveyed his estate to the plaintiff, yet that Mrs. Coffin had an inchoate right of dower which was not released; --3. that one acre of the farm was sold February 13, 1818, to Moses Bass for non-payment of the United States' tax for 1816.

It appeared that Coffin originally bought the farm at a sale made by the administrator of the estate of Moses Porter deceased, April 26, 1815, and conveyed it to the plaintiff by his own deed dated May 3, 1815, and recorded April 15 1819:--and that he exercised no acts of ownership over it after the date of his deed to the plaintiff, it being in the possession of the plaintiff's brother and tenant, who also was the administrator.

It also appeared that an acre of the land was sold for the direct tax, as alleged, and that the plaintiff redeemed it October 28, 1819.

Intending to reserve, for the consideration of the whole Court, the question whether these facts amounted to a sufficient defence, the Judge instructed the jury to return a verdict for the plaintiff; which was to be set aside, or stand according to the opinion of the Court upon the whole case, reported by the Judge.

Verdict set aside and a new trial granted.

Longfellow, for the defendant.

1. The time fixed for performance, so far as it can be collected from the defendant's letters, was the first of April, at which time it was the duty of the plaintiff to have tendered the deed; --but failing to do this precedent duty on his part, the defendant is not liable. Sugden's law of Vendors, 205, 210, 265. 2 Comyn on Contr. 52, 53. 1 Selw. N. P. 160.

2. But before the defendant was compellable to take a deed, the plaintiff was bound to exhibit a good and indefeasable title to the land. It was of the essence of the contract that the plaintiff should convey such a title,--not that the defendant should receive a deed and resort to the remedy on his covenants, for this remedy might be fruitless. Yet here the only title on record at the time of tender was the conveyance from Moses Porter to Mr. Coffin. Long after this the plaintiff registered his deed from Coffin, the existence of which the defendant had no means of proving, and did not even know.

3. Yet if the title on record had been in the plaintiff, the defendant would not have been bound to receive the deed, the land being under incumbrances. The right of dower in Mrs. Coffin, though not perfect, was yet an existing incumbrance, sufficient to justify the defendant in refusing to part with his money. And the same may be remarked of the sale of a part for nonpayment of the direct tax. It constituted indeed but a small incumbrance, but the rule applies equally to all, the reason, in every case, being the same.

Whitman, for the plaintiff.

The defendant's first position is sufficiently refuted by the evidence; for when the deed was offered to him in the latter part of April, he did not object that it was out of time; --on the contrary he agreed to accept it.

Nor was here any want of title in the plaintiff, since the deed from Coffin to him must have been on record at the time when the defendant saw and perused the deed offered by the plaintiff.

As to the right of dower in Mrs. Coffin, if the doctrine contended for by the defendant were good law, yet it is not applicable to this case; --1st. because when the deed was offered to the defendant he did not make this objection, but consented to accept it; --2d. because the plaintiff's brother and agent, who also was administrator, was constantly in actual possession of the land.

But the inchoate right of dower is a possibility of incumbrance too remote and uncertain to be regarded by the law; --because, 1st. the wife may not survive the husband,--2d. if she survive, she may never claim the land,--3d. the husband may make other provision for her by his will, which she may accept in lieu of dower.

As to the direct tax and the sale under it, this was not an adverse title, but only a lien; and whatever may be the law respecting an...