
    Van Eps against The Mayor, Aldermen, and Commonalty of the City of Schenectady.
    An agreement, on a sale of land, dVcd’^to^the tisfietTby cxewUhmit narrad
    in'separateiot^, the loSepu?person-, itis-tot an entire coatract; andirthe vender, cannot give a title as to all the lots, the vendee such^thc /o°ts authorizedderto
    is red^tb’givesei th¡sleverfnot" ekecute°ffeone whole does not '.render the con-, tract .entire.
    THIS was an action of assumpsit, for money had and receiv- £ 7 J e(^’ ^LC-> to Recover hack the consideration money) and interest Pa^ by the plaintiff, for thirty-three lots of land. Plea non as-sump sit. The cause was tried at the Schenectady circuit, in-August,. 1814, before.Mr. Justice Spencer,. '
    
    Onthe 8thof October, 1805, the defendants -sold'to the plaintiff, at public auction, as the highest bidder, thirty-three lots of ground, in the city of Schenectady, lying on the Schenectady and Albany turnpike road, to wit,. IXos. 1, 2, 3, 4, 5, 6. 9, 10, 11, „ ,r , „ ,, ’ ■, A, 12, and 13, in the first allotment, and- JXos. 8, 9-. 16, 17, 18, 19,. ’ ’ ■ - . > ’ ■>>>■> 33, 34, 35. 62, 63, 64, 65. 116, 117, 118, 119. 162, 163. and 166 in .the second allotment. The lots- were put Up ari^ sold separately, one after the other, at the- same time; the plaintiff having purchased each lot for - a distinct and. separate price. The treasurer of the defendants delivered to the .plaintiff thirty-three certificates, of one of which the following ' is a copy : “In virtue of a resolution of the mayor, aldermen, and commonalty of.the city of Schenectady, Í do hereby certify, that Abraham, Van Eps has- this day purchased at public auction, - - - - ■ lot. No, 1, of the first allotment,, on the Albany and Schenectady turnpike, in the second ward, of the said city, for the sum of 50 dollars, one fourth of which, amounting to 12 dollars and -cents, I have this day received, and upon his’paying the sum of 12 dollars and 50 cents, in six months from .this date, the sum of 12 dollars, and 50 cents, in one year and six' months from this date, and the sum of 12 dollars and 50 ceiits, being the residue of the said sum of 50 dollars, in two years andfsix months? from this date,, with lawful interest bn the. said sums, from time to time, to be paid as aforesaid, then, and in such case, a deed-will be .executed by the mayor, .aldermen, and commonalty of the said city to the said Abraham Van Eps, his heirs and assigns forever. 8th of October 1806,” • •
    The. plaintiff then proved, the payment, by him. Of the whole of the consideration of the lots so purchased',, and produced receipts of the several treasurers of the said city for the same; the last of which receipts was dated 21st of December, 1812. On the 12th of July, 1813, the plaintiff exhibited the said receipts to the mayor of the city, and demanded a deed for the lots so purchased by him. The mayor showed the plaintiff a blank quitclaim deed, which he offered to fill up and execute to him, for the said lots. The plaintiff inquired whether the defendants were not out of possession of part of the land; and was answered by the mayor in the affirmative, who said that John H. Schermerhorn was in possession of it; that the defendants had brought an action of ejectment against Schermerhorn, to recover the possession, but had failed in their suit. The mayor, nevertheless, offered to execute a quit-claim deed to the plaintiff, if he would accept it, saying, that Schermerhorn would be in town in a few days, when an exchange "would be made. The plaintiff refused to accept any deed, unless such a one as would secure to him the purchase money,-in case the title proved bad; but the mayor refused to execute any other than a quit-claim deed.
    The plaintiff then produced the records, or book of minutes of the corporation, in which was entered, the 6th of September, 1806, a resolution for the sale of the lots above mentioned, at public auction, in the terms as above mentioned in the treasurer’s certificate. There were various subsequent resolutions authorizing the mayor to execute deeds to the purchasers, on the treasurer’s receipts being produced for the purchase money, &c. to have the payments collected, and to inquire into the claim of Schermerhorn to certain lots, and take measures, if a settlement could not be effected with him, to bring an action to recover the possession. On the 5th of May, 1812, it was resolved, by the defendants, that the treasurer be directed to collect the amount due for the turnpike lots, except such lots as were in controversy. At the time this resolution was passed, the plaintiff was a member of the corporation, and continued to be a member for 12 months thereafter. The land in possession of Schermer~ horn, referred to in the minutes of the corporation, covered two acres, one rood, and eight perches, of lots Nos. 11, 12, and 13, three of the lots purchased by the plaintiff. It was proved that part of lots, Nos. 11, 12, and 13, had been the property of Schermerhorn, and his father, for more than-27 years, and had been continually in their possession. I. F. Schermerhorn came to the possession about seven years ago, by descent from his father,. and about five years ago, enclosed it with a ditch;. and held adversely to the defendants-.
    The whole amount of the purchase money páídby the plaintiff with interest tó the 20th of October, 1814, was 2y490 dollars and 34 cents ; and the amount paid on lots 11,T2, and 13, in possession of Schermerhorn, with, interest to the 20th of October,. 1814, was 834 dollars and 65' cents;
    The auctioneer who sold the lots, testified -that the treasurer' of the defendants was present, .and stated the terms of sale,but nothing was said as to the nature or form of the deed' to bd given ;'and that he never heard that Schermerhorn, of any other person, had the possession, or laid claim to any of the lots* Another witness testified, that the adverse possession of Schermerhorn' was.a matter of public notoriety at the- time of the sale. - - - -■■■•■ • '
    The judge was of opinion that the- plaintiff was entitled to recover the sum of 834 dollars and 65 cents only. The' jury found a verdict for the plaintiff for the whole sum of12,490 dollars and 34 cents, subject to the opinion of the court, on a case containing the facts above staled ; and if the court should be of opiriion that the plaintiff had no right to rescind the contract as to the whole of the lots, but only as to the three in controversy with Schermerhorn, then the verdict was to be reduced to 834 dollars and . 68 cents ; or if the court should be of Opinion that the sale/ as to any of the lots ought not to be rescinded, then á' judgment of nonsuit was to be entered,
    
      Hudson, for the plaintiff.
    Every sale of real estate, at aué-' tian, is a sale of the title, or the legal estate, in fee, clear of all encumbrances ;■ unless the terms of sale, or agreement of the pSrtles, be-different. A covenant .to'execute a -good andrsuificient deed, of land, means, that the partyyis to give a good and valid conveyance of the titled. If the vendor sells a doubtful' . . . r , ‘ . title 5 it there are no persons to covenant; if title deeds cannot he .prpduced; or i:i there are encumbrances, or the purchaser is to. ta^e ^le t^le at his own risk ; aid these are circumstances; which .must-be inserted in the terms of- sale, and made' known to the vendee, otherwise the general principle is to govern, and the vendee may disaffirm the contract, and recover back the deposite money. Van Ness, J., in Judson v. Wass, says, “ in every sale, like the present, there is a condition that the purchaser shall not bé bound to part with his money, unless the seller is able to give him a title according to the terms of the sale.”
    If the vendor is not ready with his title deeds at the day fixed, no action lies against the purchaser for the non-performance of his agreement.
    
    I he purchaser must take care that he has a good title, or an express warranty, which would be a useless caution, if the vendor was not bound to show his title, or execute a deed with the necessary covenants.
    Here was a sale at public auction, without any previous1 agreement between the parties, and the terms of sale were, that a deed was to be executed when the money was paid. The fair construction of the terms of sale is, that the title was to be sold without limitation, and the plaintiff, having paid his mgney, and demanded a conveyance that would protect him, and iio title being shown or tendered, he may rescind the contract. He was entitled to the regular chain of covenants, of seisin in fee, and power to convey ; for quiet enjoyment, &c.; - unless these covenants are expressly dispensed with in the terms of Sa^e.
    
    A deed means a good and sufficient deed, or one containing the usual or reasonable covenants. It is only where purchases are made with the express understanding that the title is to be at the risk of the vendee, that these covenants are dispensed with.
    
    After the vendee has accepted the deed, there is an end of the agreement, and he has nothing to look to, but his deed. He has time,’ therefore, to look to the deed, and before he has accepted it, the maxim of caveat emptor does not apply.
    
    The plaintiff, in this case, asked no more than what every purchaser is, by law, entitled to. If there are doubts as to the title of the vendor, neither a court of law nor equity will compel the vendee to a performance. Here there were reasonable doubts, as the defendants, when called upon, would neither show their title deeds, nor give a deed with the usual and reasonable covenants. The act relative to sheriffs’ sales shows the sense of the legislature on this subject, by protecting purchasers, and providing that their money should be restored to them, in case there should be a failure of title., or encumbrances,
    
      ' Besides, here was such a want; of disclosure of circumstances which ought-to have been disclosed at the time, that the pur-1 c[laser ought to be allowed to rescind 'the contract; more;. especially, as a corporation^ cannot' be líá%Testo an action for deceit or fraud. • ■
    ^ga;n? all the lots sold were so connected, that it must be considered as an- entire sale. All the pay ments were made together, as one entire contract, and,-the deed tendered- by the defendants' was for the whole of the lots sold. There being an adverse’ possession of some of the lots, so that the defendants.could not-give a good title for them, the case comes Within that of Poole. v. Shergold,
      
       in 'which Lord Kenyon, when sitting for the Lord Chancellor, said, that if a purchase was made of a mansion house in one lot, and- of farms," &c., in other lots, and no title! could be made by th.e vendor to the lot containing the mansion house, the' purchaser might rescind the whole contract.
    That the plaintiff has a right to recover back the money paid for the. three lots held adversely at the" time of the sale, there can be no- doubt. It has been repeatedly decided- in this court, that a cannot convey lands held adversely, without being guilty of maintenance; and if he does, his deed is void.f 
    
    
      J. V. N. Yates, contra.
    The vendor of real, property is not , T , 4 hound to return' the purchase money, unless there is fraud m the safe, or a warranty; and -where the action is either to re* cover back a deposite, or for damages, it is essential to prove that the vendor knew-of the defect. There was no pretence- of any malafides in this case, or a fraudulent concealment. .It is-'true, that there are a class of cases where an action lies ’to-recover back money, on the ground of a failure of considera* tian; but the action does not lie, 'if the money-has been paid under a full knowledge of the circumstances p or where there is no fraud.
    
    - In Nixon v. Hyserott,
      
       this court said: that a conveyance WOuld be good and perfect, though it contained no personal covenants or warranty. , - . '
    In Poole v. Shergold, Lord Kenyon decided, that, where an estate is sold- at auction in lots, and. the vendor has not a title to all the lots sold, the purchaser will be compelled to take the lots to which the title can be made, if they are not implicated with the rest; and he is entitled to compensation only pro
    
    In Drew v. Hanson,
      
       an injunction was obtained, restraining the defendant from proceeding, at law, to recover back his deposite, which was continued by Lord Eldon, though it appeared that the principal subject of the purchase were the corn and hay tithes of the parish, inserted in the particulars of the sale, and half the hay tithes belonging, in fact, to the vicar, and the other half being commuted for a customary payment. His lordship, in that case, said, that, in enforcing a specific performance, on the principle of a compensation for the variance from, the description, the court had gone so far as to defeat the very object of the purchaser; and he states several cases of apparent hardship; as, where there was a contract for the sale of a house and wharf, and the object of the purchaser was to carry on. business at the wharf, yet the court of chancery considered it a specific performance of the contract, by giving him the house, without the wharf. So, in Shirley v. Davis, where the subject ef the contract was a house on the north side of the Thames, supposed to be in the county of Essex, but which, in fact, was in the county of Kent, and the purchaser was told he would be made a churchwarden of Greenwich, and his object was to be a freeholder of Essex, he was compelled to take the house. So, in Lord Stanhope’s case, where the object was to get an estate" tithe free, Lord Thurlow compelled him to take the estate subject to tithes, 
    
    In Johnson v. Johnson, the house was valued, and paid for, at 300 pounds, and the land at 700 pounds ; and the purchaser being evicted from the house, for a defect of title, brought his action to recover back the 300 pounds, but refused to give up Ln'd, and the court of C. P. held, that he was entitled tú recover..
    T. Sedgwick, in.reply,
    insisted that this was an entire, con-5 tract, and that.a court of law could not enter into those particulár circumstances, which .might induce "a, court of'equity to compel a performance Of part only of the contract. The decision Lord Kenyon, in Chambers v. Griffiths,
      
       was decisive on this point. • , . . .
    It does not follow, that, "because nothing was said about any, covenants in the deed, the tender of a mere/juit-claim deed,. Avithoufr any covenants, was sufficient. Though some of the old cases are contradictory on this subject, yet the general rule, is,, that the deed must contain reasonable covenants, or am cf-". fectual assurance. A court of equity, will not "compel a specific performance/ unless the title of the vendor be free from all sus-, Picion‘ The purchaser is not bound to accept a doubtful1 title, The defendants being out of possession of part of the lots sold., was sufficient" to raise doubts as to their title. The defendants, the trial," ought to have shown that they had a good title to ,;the "whole. . . ’ 1
    
      
       Sugden's Law of Vendors, 5, 6. 21. 25. 296.
    
    
      
      
        Clute v. Robinson, 2 Johns. Rep. 595. 613. Cole and Frost v. Raymond, 2 Caines 195. Judson v. Wass, 11 Johns. Rep. 528. Jones v. Gardner, 10 Johns. Rep. 269.
      
    
    
      
      
         Berry v. Young, 2 Esp. Cas. 640. n. Sugden's Law of Vendors, 246.
      
    
    
      
       1 Salk. 211.
    
    
      
      
        Sugden’s Law of Vendors, 298-300.
    
    
      
      
         Com. Dig. Cond. (H.)
    
    
      
       Per Livington, J., in Frost v. Raymond, 2 Caines, 195.
    
    
      
       10 Johns. Rep. 297.
    
    
      
       6 Term Rep. 606. 3 Bos. & Pull. 162, 163.
    
    
      
      
        1 N. R L. 504. sess. 36. ch. 50. s. 11.
    
    
      
      
        5 Burr. 2639.
    
    
      
      
         2 Bro. Ch. Cas. 118.
    
    
      
      
        Williams v. Jackson, 5 Johns. Rep. 489. Jackson v. Dumont, 9 Johns. Rep. 58. Jackson v. Matsdorf, 11 Johns. Rep. 97.
      
    
    
      
      
        Sugden's Law of Vendors, 1, 2. 7. 195. 199.
    
    
      
       2 East, 269. 1 Bos. & Pull. 260. 1 Esp. N. P. Cas. 279.
      
    
    
      
      
         5 Johns. Rep. 53.
      
    
    
      
       6 Vesey, jun. 675. See, also, 7 Vesey, jun. 270. 3 Anstr. 657.
    
    
      
      
        3 Bos. & Pull. 162.
    
    
      
       Mr. Sugden, (Law of Vendors, 188.,) remarks, that Lord Eldon, In Drew v. Hanson, did not take notice of the cases of Chambers v. Griffiths, (1 Esp. Cas. 149,) and Boyer v. Blackwell, (3 Anstr. 657.,) but that he had learned, that Lord Eldon had since mentioned, from the bench, that he had met with the case of Chambers v. Griffiths, and desired it to be understood, that he was not of the same opinion with Lord Kenyon, The case of Chambers v. Griffiths was that of several houses put up and sold in separate lots, three of which were purchased by the plaintiff, but the vendor being unable to give a title to more than one of them, Lord Kenyon held, that it must be taken to be an entire contract, and if the vendor fails in making out a title to any one of the lots, the purchaser might rescind the whole contract. C. B. M'Donald seems to have been of the same opinion in Boyer v. Blackwell; and Lord Alvanley, in Johnson v. Johnson, (3 Bos. & Pull. 162.) was of opinion, that, though a court of equity might inquire into all the circumstances, and ascertain how far one part of the bargain was a material ground for the other, and award » compensation according to the real state of the transaction- v yet that, in a court of Jcvr, it musí be deemed an entire contract.
    
    
      
      
         1 Esp. N. P. Cases, 149.
      
    
    
      
       Com. Dig. Cond. (H.) 1 Sid. 467.
    
    
      
      
        Sugden's Law of Vendors, 210. 2 Vesey, 59. 2 P. Wms. 198. 2 Vesey, 679. Peake's Cases, 131. per Ld. Kenyon.
    
   Yates, J.,

delivered the opinion of the court. In the certificate or Contract executed by the treasurer of the corporation, and countersigned by the purchaser, the lot" sold is mentioned, and that upon the purchaser’s making the payments," particularly stated, a deed will he executed for it by the defendants'Xo, the purchaser; and, in this instance, to the plaintiff, hisheirsand assigns, for ever,. This, certainly, according to the'terms used, does not create an. obligation on the part of the corporation to execute a deed containing the covenants insisted on by the plaintiff. " The deed stated in the case, and offered .to -be executed by the mayor, was á sufficient compliance with the terms of the contract, to exonerate the defendants; and, unless other circumstances are disclosed' by the evidence, to justify the plaintiff in his demand to have the covenant required by him inserted, he is still held by the contract, and obliged to accept of the conveyance offered to him. By covenanting to execute a deed,; no greater duty or obligation can be intended than to execute a conveyance or assurance of the property, which triay be good and perfect, without warranty, or personal covenants. Its meaning, in the contract before us, is clear ° .... , and decisive, and will not, even by implication, admit of a more extended construction or definition.

In the case of Frost and others v. Raymond, (2 Caines' Rep. 191.,) it is stated, in the opinion of the court, to be a settled position, that an estate in fee may be created by the usual and solemn forms of conveyance, without warranty, express or implied; and that a conveyance in fee does not, ipso facto, imply a warranty; that if it did, our books would be inconsistent and unintelligible on the subject. The case of Nixon v. Hyserott (5 Johns. Rep. 58.) supports the same principle, and shows, that a general power to execute a deed does not authorize the giving it with the usual covenants of warranty, &c. It is evident, then, that where it is contracted to execute a deed, as in this case, to the plaintiff, his heirs and assigns, for ever, no covenant of any description can be intended, either by implicatian or otherwise; nor will the circumstance of the sale being at auction, vary the result. It must entirely^depend on the contract made at the time, which, in this case, is conclusive against the insertion of the covenant required by the plaintiff, as appears from the conditions or terms of sale previously made known by the treasurer, and the subsequent memorandum or ¡certificate under the signature of the parties.

It cannot be pretended that this was one entire contract for all the lots. They were put up at auction, separately, and a certificate given for each lot, which was countersigned by the purchaser, so that the corporation were obliged, if required, to give separate deeds. The offer, by the mayor, to give one deed or quit claim for all the lots purchased by the plaintiff, will not give such a character to the transaction as to make it an entire contract, and thus authorize a relinquishment, on the part of the plaintiff, of the purchase of the whole thirty-three lots, because a part of them might have been held adversely at the time of sale. The fact that each lot was separately contracted for, appears so conclusively from the evidence in the case, as, in my view, to put the right of rescinding, on the ground that the purchase of all those lots was one entire contract, wholly out of the question ; and, therefore, the existence of an adverse possession of a part of the lots could not affect the contracts for the residue.

From the facts disclosed bythe case, it does appear that lo.tij Nos. 11, 12, and -13, were held adversely to the title of the defien(JantS, at the time th„e plaintiff contracted to purchase them, ancj continued So until the payments for them were made, which would, of course, have rendered a deed for these lots (if it had been executed) wholly inoperative. The plaintiff ought, consequently, to recover back the amount of the consideration money paid for them. The verdict must, therefore, be reduced to 834 dollars and 65 cents, according to the stipulations in the' case, for which'the plaintiff must have judgment.

Judgment for the plaintiff, accordingly»  