
    Fruhauf v. Bendheim.
    
      (Supreme Court, General Term, First Department
    
    July 9, 1889.)
    1. Vendor and Vendee—Rescission—Undisclosed Incumbrance.
    Defendant contracted to convey land to plaintiff, “free from all incumbrances except said $15,000 mortgage and existing tenancies, and subject to lease to Claus Tibken, expiring May 1,1889. ” In fact, though plaintiff was ignorant thereof, the
    
      Tibken lease contained a covenant for renewal for two years at the same rental. Held, that such covenant constituted an undisclosed incumbrance, which justified plaintiff in rescinding the contract.
    2. Same—Action fob Damages—Pleading.
    In an action to recover the sum paid by plaintiff on the contract, the fact that such sum is referred to in the complaint as a deposit, and that judgment is demanded for the recovery of “said deposited sum, ” instead of asking in terms for damages for the breach of contract, is unimportant.
    3. Same—Examination of Title—Expense—Admissions.
    Plaintiff alleged that she had caused the title to be examined, and had thereby incurred expense and liability to counsel for such examination, etc., to her damage 8300. On the trial defendant admitted “that the reasonable expense of searching the title of the premises in question is $250;” and “that plaintiff agreed to pay that amount to her counsel. ” Held an admission that plaintiff had expended or incurred liability to the amount of §250 in the examination of the title.
    4. Husband and Wife—Assignment of Land Contbaot.
    The rule that a conveyance of land directly between husband and wife is void at law does not apply to an assignment of a contract for the purchase of land.
    Appeal from circuit court, Hew York county.
    Action by Fannie Fruhauf against Henry M. Bendheim, to recover damages for breach of contract to convey land. Defendant appeals from a judgment entered upon a verdict directed in favor of plaintiff.
    Argued before Van Brunt, P. J., and Daniels and Bartlett, JJ.
    
      Samuel W. Weiss, for appellant. Adolph Cohen, (Lewis Sanders, of counsel,) for respondent.
   Bartlett, J.

On July 20, 1886, an ageeement in writing was entered into between the defendant and Jacob L. Fruhauf, the husband of the plaintiff, whereby the defendant agreed to sell, and Fruhauf agreed to buy, certain real estate in the city of Hew York for $25,000, of which the sum of $1,000 was paid at the time the contract was made. The purchaser agreed to pay the balance by taking the conveyance of the premises subject to a mortgage of $15,000; by executing another mortgage thereon for $4,000; by assigning to the vendor a second mortgage on other property for $2,800; and by paying $2,200 in cash at the time of the delivery of the deed on August 5, 1886. The contract provided that the defendant on that date should execute, acknowledge, and deliver to the purchaser or to his assigns “a proper deed, containing a general warranty, and the usual full covenants for the conveying and assuring to him or them the fee-simple of the said premises free from all incumbrances, except said $15,000 mortgage and existing tenancies, and subject to lease to Claus Tibken, expiring May 1, 1889.” Prior to the day fixed for closing the title, Jacob L. Fruhauf, by an instrument in writing, assigned the contract, and all his rights therein, granted to his wife, Fannie Fruhauf, the present plaintiff. She extended the time for closing the title until August 18, 1886. On that date she attended at the place fixed by the contract, and informed the counsel for the defendant that she was ready to take the property. The defendant was not there, and his counsel said that he could not give it to her. It appears that subsequently, on August 17, 1886, and before this action was commenced, the defendant tendered to the plaintiff a deed, duly executed by himself and wife, of the premises specified in the contract, which deed in form complied with the requirements of the contract; but it also appears that then, and at all times subsequent to the execution of the agreement, the lease to Claus Tibken therein mentioned as expiring on May 1, 1889, contained a covenant for a renewal for an additional term of two years from that date at the same rent. There is no suggestion that the purchaser had any knowledge of this provision in the lease. It was admitted on the trial that Jacob L. Fruhauf had paid the defendant $1,000 under the terms of the contract of sale at the time of its execution and delivery; that the lease to Claus Tibken was still in force, unchanged in any respect; that $250 was a reasonable fee for searching the title to the premises; and that the plaintiff had agreed to pay that amount to her counsel. The court directed a verdict for the plaintiff for $1,250, with interest, and from the judgment entered upon that verdict the defendant appeals.

The renewal clause contained in lease to Glaus Tibken constituted an undisclosed incumbrance, which, unless it was removed, justified the purchaser in refusing to take title under the contract. It was a covenant running with the land, (Piggot v. Mason, 1 Paige, 412,) and enforceable against the grantee of the fee. The agreement was to convey the land free from all incumbrances, except the $15,000 mortgage and existing tenancies, and subject to the lease to Glaus Tibken expiring May 1, 1889. It is argued that the term •“existing tenancies” showed that something besides the Tibken lease was in the minds of the parties, and that the right of renewal reserved in that lease was covered by this expression. The particular specification of the Tibken lease; however, in addition to existing tenancies, indicates, on the contrary, that such lease was not considered to be embraced in the phrase “existing tenancies.” So far as this lease is concerned, what the vendor agreed to do was to take the premises subject to a letting which should terminate on May 1, 1889, not subject to a lease which be might be obliged to continue until May 1, 1891. The existence of a covenant which entitled the tenant to compel the grantee of the leased property thus to extend his tenancy was an in'cumbrance which prevented the vendor from carrying out his- contract according to its terms.

The objection that the assignment of the contract conveyed no rights to the plaintiff, because she was the wife of the original vendee, is not tenable. It is true that prior to the enactment of chapter 537 of the Laws of 1887 a deed directly between husband and wife was wholly ineffectual at law, and the transaction in suit occurred in 1886. But a contract for the purchase and sale of land is not a deed. Although under such a contract it has frequently been said that the land becomes real estate in the purchasers, yet even then the vendor retains the legal title as their trustee. Thomson v. Smith, 63 N. Y. 301, 303. The assignment of a contract of this kind is not equivalent too conveyance of the property to which it relates, for the legal title to such property remains in trust in the vendor. If such an assignment were equivalent to a deed, the wife of the original vendee would have to join in the assignment in order to cut off her dower, should the original vendee desire to transfer his interest in the contract to a third party.

In the case at bar, the vendee, upon the failure of the vendor to convey a good title, could at once maintain an action to recover so much of the purchase price as had been paid. The fact that the payment of $1,000 is referred to in the complaint as a deposit, and that the plaintiff demands judgment for the recovery of “said deposited sum,” instead of asking in terms for damages for the breach of the contract, is unimportant. It is enough that the complaint stated facts which when proved entitled the plaintiff to the verdict which she has obtained.

The suggestion that the plaintiff did not show that she had performed, or offered to perform, the contract on her part, is met by an admission to the contrary in the record. Appeal book, fol. 50. As to that portion of the verdict which is based on the expenditures for the examination of the title, the appellant insists that there is no evidence that the plaintiff employed counsel to search the title for her, or that the title was searched for her, or that she incurred any expense therefor. On this subject there are two admissions in the case. The first is “ that the reasonable expense of searching the title of the premises in question is $250.” The second of these admissions is: “It is admitted by the defendant that $250 is a reasonable fee for searching title and disbursements of premises specified in contract, and that plaintiff agreed to pay that amount to her counsel.” The complaint expressly alleged that the plaintiff and her husband caused the title to be examined, and thereby incurred an expense and liability to counsel for such examination, and for disbursements necessarily incurred, to the damage of the plaintiff in the sum of $300. The admissions which have been quoted must have been made in reference to this allegation. They could have had no force or effect in the case, and were utterly meaningless, unless they were intended to involve an acknowledgment on the part of the defendant that the plaintiff had incurred an obligation to pay $250 to her counsel, and I think they must be so construed.

The tender of a deed by the defendant to the plaintiff on August 17, 1886, was ineffectual, inasmuch as the defect in the title due to the existence of the renewal clause in the Tibken lease had not been obviated; and, in view of the admitted and continued existence of this defect, the rulings of the court excluding testimony as to why the defendant did not attend to close the title at an earlier date, and the other rulings upon evidence to which our attention has been directed, must be deemed unimportant. The judgment appealed from should be affirmed, with costs. All concur.  