Brotherton v. Brotherton

By the Court,

The question presented upon the demurrer in this case is, whether the declaration sets forth the covenant according to its legal effect; the defendant contends that the $217,10 is payable only upon the contingency, that the title of E. Ingersoll to the land sold should prove good. It had previously come, into the hands of the plaintiff, who had conveyed it to the defendant, and the above sum was part of the purchase money.

I think the defendant is mistaken in respect to the true understanding of the agreement. The debt in the first instance, is acknowledged, unqualifiedly, to be due as part of the price of the farm; and then the plaintiff stipu*329lates to relinquish it upon the failure of the title mentioned, It is absurd to suppose that he not only parted with the right and title to, and the possession of his farm, but stipulated besides to prove the title perfect in court, before the consideration money was to be paid. Such an interpretation of the instrument should not be given unless clearly required by the language of it. In my judgment it amounts in good sense and in legal effect, to a warranty of the title, besides allowing the defendant to set up the breach in bar of a recovery of what is due of the purchase money. The proviso operates by way of defeasance, which must come from the defendant. 1 Chitty’s Pl. 301. 1 Saund. 233, (2 n.) 1 T. R. 645.

Judgment for plaintiff.