Opinion
May 31, 1907.
Harold Swain [ Norman Wilmer Chandler with him on the brief], for the appellant.
George W. Carr, for the respondent.
On the 4th day of February, 1905, the plaintiff and defendant entered into a contract in writing, in which the defendant promised to sell to the plaintiff, in consideration of $22,000, "all the premises known as Nos. 165 and 167 East One Hundred and Eighteenth street in the city of New York," and the plaintiff agreed to purchase such premises and to pay the purchase price in the manner set forth in the contract. It was further agreed that "the said party of the first part (the defendant) on receiving such payments and said purchase money bond and mortgage at the time and in the manner above mentioned shall, at its own proper costs, and expenses execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered to the said party of the second part quitclaim deed of said premises." At the time agreed upon for passing the deed and making the payments the plaintiff refused to accept the quitclaim deed tendered by the defendant, on the ground that the latter could not convey a merchantable title, various objections being urged. It is now conceded that only one of these objections has merit, and the fact is not in dispute here that "the wife of William G. Wood (a former owner of the premises) did not join in the execution of the deed to George T. Leaird (defendant's grantor) made by said William G. Wood and recorded in Liber 23, section 6 of conveyances." Nor is it disputed that Virginia Wood, the then wife of said William G. Wood, is still alive and the marriage between them is in force. Under this state of facts it is clear that the defendant was not in a position to give a merchantable title to the premises. It is, however, contended, in support of the judgment dismissing the complaint for specific performance, or for the recovery of the amount paid upon the purchase price and for the expense of searching title, that the defendant met the requirements of the contract by tendering a quitclaim deed. This is the only question to be determined here. I am of the opinion that the judgment must be reversed.
It is the sale of the land in question that is the subject of the contract, and the deed of conveyance is but the means by which that end is to be accomplished. The vendors covenanted to convey certain and defined premises and the deed tendered was insufficient to execute such covenants. It did not convey an outstanding and existing inchoate right of dower of the wife of a prior grantor. Therefore there was a failure to convey the premises as stipulated, and the vendee was justified in refusing to accept the deed tendered.
"The express agreement to execute a deed, and the implied undertaking that the title thereby conveyed shall be perfect and free from incumbrances, are distinct and separate obligations," say the court in Leggett v. Mutual Life Ins. Co. ( 53 N.Y. 394, 398). "One is expressed in the contract, the other is implied up to a certain stage of the transaction (viz., so long as the contract remains executory) from the agreement to sell." A like distinction is noted in Delevan v. Duncan ( 49 N.Y. 485, 487) in discussing the case of Burwell v. Jackson (9 id. 535) where the authorities were carefully reviewed and the proposition was laid down that every purchaser of real estate is entitled to a marketable title free from incumbrances and defects, unless he expressly stipulates to accept a defective title. ( Vought v. Williams, 120 N.Y. 253, 257.) In the case now before us there was an agreement to sell "all the premises," and it conclusively appears that the defendant did not have title to so much of the premises as was involved in the inchoate right of dower of Virginia Wood. By agreeing to accept a quitclaim deed, the plaintiff did not expressly stipulate to take anything less than title to all of the premises in the contract mentioned. The learned court below erred in dismissing the complaint upon the merits.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide event.
INGRAHAM, LAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.