Duer's Executors v. Harrill

Whether the plaintiffs have a right to call upon the defendant, for the nonexecution of the agreement to purchase depends upon the particular contract made between them. Though the general rule of law may require the seller to show what title he has, or, according to (51) the later decisions (6 East, 555), aver that he was seised in fee, and made a good and satisfactory title by the time specified, yet the contract set forth in this case evidently dispenses with any such averment. It is too clear to be disputed that the executors sold only the right of their testator, and that they would not warrant the title to the purchaser. In these cases it is the duty of the Court so to construe the terms of the sale as to collect the meaning of the parties *Page 44 without laying too much stress upon technical words which may have been improperly introduced. Thus, where the purchaser of a term for years stipulated to pay a certain rent before the lease was granted, the Court held that, though the money to be paid could not strictly be called a rent, yet the parties intended the money should be paid, and it must be paid accordingly. Woodfall's L. and T., 241.

So, in this case, the terms "guarantee incumbrances" could not be meant in their literal signification without a manifest absurdity, and can only be taken to import that the executors would not warrant the title, and that the bidders must take the risk upon themselves. This imposed on them the duty of inquiring into the title before they bid for the land, but furnishes no defense to the action. As the executors have tendered a deed, they are entitled to damages for the nonperformance of the contract. The nonsuit must be set aside and a new trial awarded.

In actions on executory contracts, where the promises or covenants are concurrent, the plaintiff must show a performance on his part, or a tender and refusal, or a discharge from the performance. In this case, the plaintiffs contracted to sell their testator's interest in certain lands, and the evidence shows that they tendered a sufficient deed of (52) conveyance to the defendant for that interest, which he refused to receive. It appears to me that this was all that the plaintiffs had contracted to do, and that the judge erred in requiring more.

By the expressions "no incumbrances guaranteed," I understand the vendors to mean that they would guarantee that there were no incumbrances: if there were any, the defendants should have shown them — the plaintiffs should not have been called on to prove a negative.

HALL, J., concurred.

PER CURIAM. Reversed.