
    (88 Hun, 74.)
    GLENN v. ROSSLER et al.
    (Supreme Court, General Term, Fifth Department.
    June 21, 1895.)
    1. - Vendor and Purchaser — Defective Title — Recovery of Purchase Money.
    Where the contract requires the payment of a large portion of the purchase money on a certain day, and provides that after the payment is made the vendor shall execute a deed to the purchaser, and deliver a tax and title search, showing a good title to the premises, the purchaser is entitled to the deed and the tax and title search on making such payment.
    2. Same—Time to Obtain Title.
    One who agrees to sell land, the title to which is in an infafit at the time fixed for delivering the deed, cannot claim, in an action by the purchaser to recover back purchase money paid by him, that he is entitled to time in order to obtain the title from such infant.
    Appeal from circuit court, Erie county.
    Action by James S. Glenn against Charles Rossler and Richard T. Ditzell to recover payments on a land contract rescinded for want of title in the vendors. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendants appeal.
    Affirmed. .
    Argued before DWIGHT, P. J., and LEWIS, BRADLEY, and WARD, J J.
    Charles F. Tabor, for appellant Ditzell.
    John M. Chipman, for appellant Rossler.
    Tracy C. Becker, for respondent.
   WARD, J.

The defendants contracted to sell to the plaintiff about 130 acres of land located on the Niagara river, in Erie county, on the 11th day of March, 1893, for $138,347, $1,000 of which was to be paid in seven days, $5,000 April 15th, $10,000 July 1st, and $10,000 October 1, 1893, with interest at the rate of 6 per cent, per annum on all sums remaining unpaid at each payment; and the contract further provided that:

“The party of the first part [the defendants] shall after the payments men-, tloned herein are fully made on this contract, at their own proper cost and expense, execute and deliver to the said party of the second part [the plaintiff] a good and sufficient warranty deed of said premises, and at the time deliver to the second party a tax and title search, made by one of the guaranty search companies of the city of Buffalo, showing good and perfect title at the time deed to said premises is executed and delivered by first parties to second party. The party of the second part agrees to execute and deliver to first parties a bond and mortgage for the sum of one hundred twelve thousand two hundred and thirty-seven dollars, due and payable six years from October first, 1893, with interest at the rate of six per cent, per annum, payable semiannually.’’

The defendants did not have title to the premises they had thus contracted to sell. They had only a contract to purchase from a widow, who had a life estate, simply, in them; the fee of the land being in her 11 children, 5 of whom were infants. All of the payments due before the 1st of October from the plaintiff, under his contract, were made, except the sum of $3,000 of the July payment, which the jury found had been extended by the agreement of the parties until October 1st. The 1st being Sunday, the parties agreed to transact the business hereafter stated on Monday, October 2d. On that day the plaintiff tendered to the defendants, in money, $17,330, due, by the terms of the contract, on October 1st, including the accrued interest, and demanded a deed of the defendants of the premises, pursuant to the contract. The defendants stated, in effect, that they were unable to give title as they had contracted to do, and asked delay to procure it of the owners, and that the money be deposited in a bank to await their procuring such title. This the plaintiff refused to do, and retained the money, and the next day demanded of them the repayment of the moneys he had advanced upon the contract to the defendants, which amounted to about $13,000. This the defendants declined to do, whereupon this action was brought by the plaintiff to recover, among other things, the moneys so demanded, and interest.

The principal contention of the defendants here is that the payment of the money due October 1st was a condition precedent, under the contract, to the right of the plaintiff to a deed; that he could not make such payment dependent upon the deed being delivered to him; and this was so notwithstanding the want of title-in the defendants, as the covenants to pay and to deed were independent, and not dependent, covenants. This involves a consideration of the clause in the contract above quoted. We think the-fair inference from that clause is that the deed was to be executedi the same day as the payment, and the plaintiff was to have a tax and title search; the object of the search being to assure the plaintiff that the defendants had title, before he should be required to-pay the large sum of money due that ■ day. When the title was shown, the payment of the money; the execution and delivery of the deed by the defendants, and of the bond and mortgage by the plaintiff, was the natural sequence. This view is strengthened by the fact that the bond and mortgage were payable with interest from October 1st, and this is the true construction, notwithstanding the provision as to the deed being given “after the payments mentioned herein are fully made upon this contract.” In determining the exact force of these words, we must examine the whole instrument, and consider the object the parties had in malting it. Covenants are to be construed as dependent or independent according to the intention of the parties and the good sense of the case. Technical words must give way to such intent. M’Crelish v. Churchman, 4 Rawle, 26; Bredin v. Agnew, 3 Watts & S. 300; Wright v. Smyth, 4 Watts & S. 527. Although, where payments are to be made in installments, under contracts for the purchase of land, the covenants to pay are independent, and the vendor can sue on each installment as it matures, yet when the last installment becomes due the payment of the money and the conveyance of the land become dependent acts. Beecher v. Conradt, 13 N. Y. 108; Johnson v. Wygant, 11 Wend. 49; Grant v. Johnson, 5 N. Y. 247; Eddy v. Davis, 116 N. Y. 247, 22 N. E. 362. In the first case cited the vendor covenanted to convey if the vendee faithfully performed his covenants, among which was the payment of five annual installments of the consideration; and in the second case the covenant was, “and upon the payment thereof [the consideration] I am to receive from said Johnson a good warranty deed of said lands.” The rule in these cases is applicable here, as the deed was due October 1st In Robb v. Montgomery, 20 Johns. 15, 20,—a case largely running through the books,—the supreme court lay down, the rule in this language:

“In case the conveyance and payment are to be simultaneous acts, there then must be an existing capacity in the one who is to convey to give a good title. In the other case, where the payments are to precede the conveyance, it is no excuse for nonpayment that there is not a present, existing capacity to convey a good title, unless the one whose duty it is to pay offers to do so on receiving a good title, and then it must be made to him, or the contract will be rescinded.”

Later cases (Holmes v. Holmes, 12 Barb. 137, affirmed 9 N. Y. 525; Lawrence v. Taylor, 5 Hill, 107, 115, and cases there cited) hold that where the vendor has not title, or defective title, any precedent condition on the part of the vendee need not be fulfilled, such as tendering payment or security; and the court, in the last case, say that to require such a performance in such a case would be “a most idle act.” This is the doctrine of the English courts, and seems to be well sustained by reason and authority. In Sir Anthony Main’s Case, 5 Coke, 21 (on error), Sir Anthony leased to Scott for 21 years by indenture, and covenanted that at any time during Scott’s life, upon surrender of his lease, Sir Anthony would make a new lease, and gave a bond to perform this covenant in debt on the bond by Scott against Main, the latter pleaded that Scott did not surrender. Scott replied that Main, after the lease, had granted the reversion to another, for 80 years, and on demurrer judgment was given to the plaintiff. The court says “that Main had broken his covenant without a surrender, because he had disabled himself, and the law will not enforce any one to do a thing which will be vain and fruitless; and although the lessee, by the words, was to do the first act, yet, as the lessor had disabled himself, his covenant was broken without that act.” This reasoning has never been answered. Whether we apply to the defendant’s contention the rule just stated, or the stricter one in Eobb v. Montgomery, it cannot prevail, as the plaintiff made the proper tender of the money, and demand for a conveyance, at the time fixed by the contract.

The defendants insist that they are .entitled under the contract, or, if not by that, by virtue of some parol understanding, to time to procure title of the owners. This is an action at law for the recovery of the money paid by the plaintiff. The compjaint, we think, notwithstanding the defendants’ criticism of it, embraces this cause of action, and it is unimportant whether it embraces others or not. It was said by some of the witnesses that proceedings were on foot to obtain title from the infants through the court, but it did not appear that the court had confirmed any sale of the infants’ property, and as a matter of fact the title of the infants was not secured until long afterwards. Certainly, the plaintiff could not be delayed in obtaining his title by a proceeding so full of uncertainty as this. He was entitled to his deed and title on the 1st of October, and, the defendants then being unable to furnish it, the plaintiff could rescind the contract, which he did, and recover the money which he had advanced upon it. Northridge v. Moore, 118 N. Y. 419, 422, 23 N. E. 570, and cases cited. Where the vendor is without title, he has no right to time to acquire it after the deed is due. Camp v. Morse, 5 Denio, 161.

The defendants complain of the charge of the court in regard to the written agreement of August 31st, which provided, in effect, that there would be $17,330 due the defendants on the purchase of the land, October 1, 1893. It is claimed that the court stated that that writing did extend the payment of the $3,000 remaining of the July payment (which had been extended to September 11th) to October 1st. It is difficult to conclude otherwise from this writing, as the $3,000 was in fact embraced in the $17,330; but, be that as it may, when we take the whole charge together no exception can prevail against it, because it fairly submitted the question of extension to the jury.

The defendants also object because the plaintiff had, by contract, conveyed a half interest in the land to one Earnest, and that he could not rescind his contract with the defendants as long as that ■interest was outstanding. Whatever may be the rule in cases of fraud, where there must be complete restoration by the party rescinding, the point is not well taken here, for the reason that the rescission is for a breach of the contract between the plaintiff and the defendants, which destroys the contract itself, and any rights that- Earnest may have had were dependent upon that contract, and fall with it. . At least, Earnest has no claim-against these defendants, whatever he may have against the plaintiff. The defendants, therefore, cannot object.

The defendants finally object that the plaintiff is in default for not tendering a bond and mortgage, as well as the payment on October 2d, as required by the contract. Had the defendants been ready with their deed and title, the plaintiff was bound to have executed and delivered the bond and mortgage, but, as there was no title to deed, there was none to mortgage, and the declaration of the defendants that they could not deed relieved the plaintiff from tendering the bond and mortgage.

We find no reversible error upon this appeal, and the judgment and order should be affirmed. All concur.  