
    Douw Clute, appellant, against John Robinson, respondent.
    
    Cgave abona and mortgage to B, and took a bond of defeasance from B, conditioned, Ibat if C should execute to B, on or before a certain day, a good and sufficient deed of a certain parcel of land, that then 15 should deliver up the bond aDd mortgage to be cancelled. C tendered the deed to 1), before the day limited in the defeasance and demanded the bond and mortgage, but B refused to accept the deed, or to give up the bond and mortgage, on (he ground that C had not a complete title to the land described in the deed. B afterwards sold and assigned the bond and mortgage to R, who filed a bill for the foreclosure of the mortgage, and the payment of the money. It was held, that R took the assignment of the bond and mortgage, subject to all the equity existing- between O and B, and that it was immaterial whether be had notice .of the defeasance or cot; nor was it requisite that the defeasance should have been recorded. The act concerning the registry ofrnortgages does not apply to such a case. A eoveuant to execute and deliver a good and sufficient deed means an operative conveyance, or one that transfers a good and sufficient title to the lands conveyed. The conveyance of a title, admitted to be doubtful, is not a good performance of a covenant to execute a good and sufficient deed. But if the party covenanting to convey has a good and perfect title, at the time oftho decree, or the coming in of the master’s report, it is snficieat ¡ and he may be allowed then to perform bis contract, and save the forfeiture of his bond, on making compensation for the delay of the Derformance. Therule of compensation in this case was the interest on the bond from its date to the time of the final decree.
    The respondent filed his bill in the Court of Chancery against the appellant, for the foreclosure of the equity of redemption of a mortgage executed by the appellant to one Michael Raivlins, and by him assigned to the re-J b . spondent. On the 28th February, 1809, the appellant executed a bond to Rawlins, conditioned for the payment of 1,200 dollars, on or before the 28th February, 1807, with intersst yearly; and for securing the payment of the bond, at the same time executed a mortgage of the south half part of Lot No. 152, in the Western Allotment of Kingsborough, in the town of Johnstown, containing 49 acres of land. On the 17th December, 1800, Rawlins .assigned the bond and mortgage to the respondent, to secure the payment of 75 dollars due on a judgment, and of 1,105 dollars for goods sold and delivered to him, of which assignment the appellant had notice.
    The appellant, in his answer, admitted the execution of the bond and mortgage, but alleged, that at the time they were executed, the said Michael Raivlins signed, sealed, and delivered, to the appellant, as a defeasance to the same, a bond in the penalty of 2,400 dollars, with a condition thereunder written, “ that if the appellant, his heirs, executors, and administrators, should well and truly execute unto the said Michael Rawlins, his heirs, executors, administrators, and assigns, a good and sufficient deed or conveyance for 300 acres of land in the township of Galen, commonly called by the name of the military land, the same being part of the said tract of land distinguished by lot number 56, on or before the 1st day of May then next, then the said bond and mortgage (describing them) should be surrendered and given up to the appellant.” The appellant’s answer further stated, that the mortgaged premises were purchased by him of Rawlins, to whom he was to convey a house and lot of ground in Schenectady, which had been done, and also 300 acres of land in Galen, at four dollars per acre, but as the appellant’s title to the said land was not then complete, the bond and mortgage was taken to secure the conveyance, on the 1st May then next, with the defeasance. That on the 28th April, 1800, he executed a good and sufficient deed for the said 300 acres of land in Galen, and on the 30th of the same month, tendered the same deed to Rawlins, and demanded the bond and mortgage; but that Rawlins refused to accept the deed, or to deliver up the bond and mortgage. The appellant denied that he had authorized or assented to the assignment of the bond and mortgage, or had any notice of such assignment, until the 1st January, 1801, and that, on the next day, he showed the bond and defeasance to the respondent, and informed him of the tender and request made to Rawlins, and offered the deed to the respondent, who refused to accept it. The appellant admitted, that the respondent had demanded payment of the bond, which had been refused, and he insisted, that by the defeasance and tender of the deed, he was wholly exonerated from the payment of the bond, in law and equity ; and he offered to deliver the deed to Rawlins or the respondent, or to execute such other good and sufficient deed as the court might direct. Thc respondent having obtained leave of the court of channcery, filed his supplemental bill, in which he more particularly stated the agreement and sale of the mortgaged premises, as mentioned in the appellant’s answer to the original bill; and that when the defeasance was executed, it was the full understanding and agreement of the appellant and Rawlins, that the appellants should convey a good, clear, and legal title to the moiety of the said lot number 56, in Galen, and that the completion of the purchase was postoned, and the said bond and mortgage given for that purpose. That the appellant, on the 30th April, 1800, offered Rawlins a paper or writing, purporting to be a conveyance of the moiety of the said lot number 56, in Galen, and requested the bond and mortgage to be delivered up to him; but that Rawlins demanded of the appellant, if he had a better title than he had when the bond and mortgage were executed; and being answered in the negative, he refused to accept the deed, or deliver up the bond and mortgage. That the said lot number 56, in Galen, is one of those lots of land, set apart for the officers and soldiers of the late Neio-Yorlc line of the army, commonly called dead-soldier lots, being patented to officers and soldiers who served in the said line of the army, and died prior to the 27th oí March, 1783, or at any other time, nor at the exhibition of the said supplemental bill, any legal title to the said lot, or the said moiety thereof, nor was he, at either of those times, able to make a good and sufficient conveyance of the same. To the supplemental bili of the respondent, the appellant pleaded in part, and answered as to the rest. By his plea, he insisted upon the bond of defeasance, the tender of the deed, and the demand of the surrender of the bond and mortgage, and the refusal by Rawlins, and that there never was any agreement relative to the said conveyance of the moiety of lot number 56, different from that contained in the defeasance, in bar to the relief prayed for, and to such parts of the said bill, as sought a discovery of a different agreement, or a discovery of the appellant’s title.
    The chancellor, on the 15th December, 1803, overruled the appellant’s plea, and ordered an answer to so much of the respondent’s bill, as was comprised in the said plea. The appellant then put in such answer, and admitted the bargain about the purchase of the farm, at Johnstown, of Rawlins, in payment for which, the house and lot in Schenectady was to be conveyed to Rawlins, and also 300 acres of land in lot number 56, in Galen; but he denied that the proposition to purchase first came from him, or that he agreed to convey a moiety of the said lot number 56, but only 300 acres. The appellant admitted, that the deed for the farm”in Johnstown was deposited with one William Adams, until the deed for the 300 acres of land, in lot number 56, in Galen, should be made out, but denied that he represented his title to the said 300 acres to be defective, or his inability to execute a good deed, or that such representation was the ground of leaving the deed for the farm with Adams; and he averred, that Rawlins was made acquainted with the appellant’s title, and agreed to take his warrantee deed for the 300 acres, in salisfaciion for the 1,300 dollars. That the appellant having been informed that the legislature would probably make some provision, to remove all doubts about the titles to lands patented, in the names of deceased soldiers, and that his title would thereby be put out of ail dispute, was induced to delay executing the deed, and for that reason only, the deeds were deposited with Adams : That in February, 1800, apprehending that no legislative provision would be made relative to titles for lands patented to deceased soldiers, before the end of the session of the legislature, and being desirous to have his title-deed for the farm at Johnstown in his possession, it was agreed, on the 38th February, 1800, that the deeds in the hands of Adams should be delivered to the grantees respectively, and that the bond and mortgage and defeasance should be executed, which was accordingly done, as before stated ; but the appellant denied that he did, on the 28th February, 1800, or at any other time, declare his inability to make and convey a good title for the said 300 acres in lot number 56, in Galen ; and he averred that he was advised, and always thought his title was good; and that the agreement relative to the conveyance of the said 300 acres of laud, upon which the said bond and mortgage were to be given up, is contained in the condition of the bond of defeasance; and that there never was any different agreement, verbal or written, relative to the said •terms of conveyance. The appellant demurred to such parts of the respondent’s bill, as prayed a discovery of an y parol agreement relative to the said 800 acres of land, or the said terms of purchase variant from the said bond Of defeasance; The appellant further admitted, that he tendered to Rawlins, on the 30th April, 1800, the deed set forth in the original bill, and demanded the bond and mortgage, and that Rawlins refused to receive the deed, or give up the bond and mortgage; b.ut he denied that Raivlins demanded of him, whether he could make a better title to the moiety of the said lot, number 56, than he had when the bond and mortgage were executed. It was admitted; also, that lot number 56 was otie of those described as dead-soldier lots; and that letters patent were granted for the said lot, containing 600 acres, dated the 20th March, 1793, pursuant to an act of the legislature, entititled “an act to carry into effect the concurrent resolutions and acts of the legislature, for granting certain lands, promised to be given as bounty lands, and for other purposes therein mentioned,” in the name of one John Van Huysen, excepting all gold and silver mines, and 100 acres to be laid out in a square, at the S. E. corner of the lot, and 5 acres of every 100, for highways, &c. to hold to the said John Van Huysen, his heirs and assigns for ever ; that Van Huysen was a soldier in the New-Yorlc line of the army of the United States, and died in the year 1781, unmarried, and without issue, leaving two brothers and three sisters.- The appellant then stated a deduction of his title from some of the brothers and sisters of Van Huysen, by which he became entitled to three undivided fifth parts of the said lot in fee, (excepting the 100 acres reserved in the patent,) and that he took possession of the lot in February, 1798.-That by an act of the legislature, entitled “ an act granting relief to certain persons claiming title to lands in the counties of Cayuga and Onondaga,” passed the Sth/dprii, 3803, the title of all lands theretofore granted by letters patent to officers and soldiers serving in the New-York■ line of the army of the United States, and who died previous to the 27t.h March, 1783, was dedared to have been vested in them on their deaths respectively, by which act any doubts which might have existed respecting the appellant’s title, were totally removed.
    Several witnesses, who are examined in the court below, proved, that at the time the bargain was made between Rawlins and the appellant, for the purchase of the farm in Johnstown, and before the delivery of the deeds, the appellant told Rawlins his title to the 300 acres of land, in lot number 56, in Galen, was rn dispute before the Onondaga commissioners-; and that he offered to give the bond and mortgage, and to procure a good title for the 300 acres of land by the first day of May then next, to which Rawlins consented ; and that, on the 30th April, 1800, when the deed was tendered to Rawlins, the appellant, on being asked by Ratvlins, whether he had a better title than when he executed the bond and mortgage, answered that he had not.
    His honour the CHANCELLOR, after a bearing of the cause, on the 11th day of September, 1805, decreed a sale of the mortgaged premises, and that the moneys arising from the sale, should be brought into court. From this decree, an appeal was made to this court.
    The reasons for the decree were thus assigned by
    The CHANCELLOR.
    There can be no doubt but that the respondent took his assignment, subject to all equities which attached to it, in the hands of Michael Rawlins. It could not, therefore, he necessary to examine whether he had notice of the instrument intended to operate as a defeasance. There is, however, no proof of such notice, and the complainant, in his answer to the cross-bill, has expressly denied it. The registering act has no influence on the case. It was enáeted, not for the security of the mortgagee, or his assignee, but as a protection to bona fide purchasers of the mortgaged premises.
    
      All the witnesses, examined in this cause, concur in stating, that at the time the deeds for the house and lot in Schenectady, and the farm in Johnstown, were executed, the completion of the conveyance, for the one half of'No. 56, in the township of Galen, was postponed, for the express purpose of enabling the appellant to perfect the title to it. When the tender of the deed was made, the title was precisely'in the same situation in which it was at the time the other conveyances were -executed; and the intent of the parties, as expressed in the several written instruments, combined with the other circumstances attending the transaction, as -related by the witnesses, clearly show, that no reliance was placed on the personal responsibility of the appellant. The lands were valued at 4 dollars per acre, the bond and mortgage were for that sum, and, if a good and sufficient title was made to Maivlins, by the defendant, on or before the 1st day of 'May, then next, it was to operate as. a satisfaction.
    It is no answer to this, to say, that notwithstanding the impressions they had, respecting the title, it might have been maintained at law. The parties agreed for a title, without a cloud or embarrassment. The doubts that existed were to be removed by an act of the legislature. Their'expectations were not realized, and the title remained in statu quo. Nor could it be -reasonable to exact from Maivlins a' longer delay, in the hope that -a future legislature might pass an act confirming the title. The appellant had undertaken to have the subsisting difficulties obviated by a certain day, and bis failure wa-s .at his own peril.
    As to the intent of the parties, this is a clear case, and the defendant is bound to pay the equivalent stipulated.
    It will be discovered that I do not include in the case the considerations which were urged to induce a liberal construction of the act, making provisions for granting bounty lands to the persons serving in a military capacity during the revolutionary war. The parties, both by their professions and acts, showed, that it was their intention to have their doults respecting the title settled, before it was devolved on Raivlins. If those doubts remained unsettled, the sole object of the delay was defeated, and, within the intent of the contract, the defendant could not, by his conveyance, vest a good and sufficient title.
    The money secured by the mortgage was not payable until 1807; but the interest was to bo paid annually.
    I was, therefore, of opinion, that the appellant must perform the alternative, by paying the amount of the interest due on the mortgage, and that, to ascertain it, a yefpveqcg to a master was proper.' All further directions Were reserved, till the coming in of the master’s report.
    
      Henry, for the appellant.
    When this cause was first commenced, it involved a question of great and general importance; and though the act of the legislature of the 5th April, 1803, by removing the doubts which existed, Relative to the titles, under patents issued in the names of deceased soldiers, has diminished that importance, yet the decision of the cause deeply concerns the particular interest of the appellant.
    It yvill be contended, on the part of the respondent, that having taken the assignment of the bond and mortgage, without notice of the defeasance, he is not to be affected by that instrument. But it is ,a general principle, to which there is no exception, but in cases governed by the law merchant, that an assignee of a chose in action, takes it subject to all the equity which could exist, had it remained in the hands of the assignor. A party who creates an estate, may annex what condition to it he pleases. In the present case, the defeasance was a condition created at the time of the bond and mortgage. The respondent, therefore, when he took the bond and mortgage, received it, subject to the condition expressed in the defeasance, and to all the equity existing, while in the hands of Rawlins. The condition of the bond of defea-sanee was, that if the appellant should execute a good and ¡sufficient deed or conveyance, for 300 acres of land, in lot No. 56, in Galen, on or before the 1st day oí May then next, the bond and mortgage was'to be given up to the appellant. When the appellant, therefore, on the 30th day of April, tendered the conveyance to the respondent, he saved the forfeiture, or, in other words, performed the condition of the bond of defeasance, and became entitled to have the bond and mortgage given up to him. It is said, however, that the appellant was to give a perfect title to the land, and not merely a good deed. JBut the condition speaks only of a good and sufficient conveyance; and there may be a good and sufficient deed to convey an estate, though by some possible doubts, or defects, the title may not be absolutely perfect. To show that the appellant undertook to convey a perfect title, the respondent has resorted to parol evidence, to explain or vary the terms of the written contract as expressed in the bond of defeasance,  Parol evidence is never admissible', unless to explain a latent ambiguity, to repel fraud, to coiv rect an accidental mistake, or to rebut an equity or pre* ■ sumption. Here is no latent ambiguity, no.doubt arising from facts extrinsic to the instrument. There is no fraud or mistake alleged in the respondent’s bill, nor is any pretended. The general rule will be found laid down and recognised in the following authorities: 2 Vernon, 34. JBunhury, .65. 2 Atkyns, 683.' 1 Brown. C.' C. 93. 388. 4 Brown. C. C, 414. 477. 1 Vesey, jun. 241. 326, 402. 3 Vesey, jun, 34. 5 Vesey, jun. 688, The exceptions or qualifications of the general rule, may be seen in 2 P. Wms. 202. I Brown. C, C. 75. 1 Vesey, jun. 565. 2 Vesey, jun. 100. 5 Vesey, jun. 647. ' 7 Vesey, jun. 575. 8 Vesey, jun. 22. Rut the principal ground on which the cause of the appellant rests, is his capacity to make a good and sufficient deed or title to Rawlins, pursuant to his agreement. By a resolution of Congress, of the 16th September, 1776, for the encouragement of soldiers, as should engage in the service and continue therein, until the close of the war, or until discharged by Congress, and to the representatives, of such officers and soldiers as should be slain by the enemy.” By the act of the'legislature of this state, passed the 20th July, 1782, and by the concurrent resolutions of both houses, on the 27th March, 1783, and the act of the 11th May, 1784, the resolution of Congress is recognised, and the legislature declare their intention to carry it into effect; so far as it respected this state, and set apart certain tracts of land for that purpose; a return is directed to be made of all persons, or their legal representatives, who are entitled to lands, by virtue of the resolutions and acts of ¡he legislature, and the surveyor general is directed to lay out the tract of country assigned into townships, and those townships into lots, and to determine, by ballot, to whom such lots were to belong; and the governor is.directcd to issue patents for the lots, to the persons to whom the lots shall respectively fall, on such .ballotting. The act of the 28th February, 1789,. refers to the previous acts and resolutions, and directs the surveyor general, to lay out the lands ; and patents are directed to be issued for the lots drawn by ballot, in the names of the officers and soldiers entitled to lands, or their legal representatives. On the 6th April, 1790, another act was passed, “ to carry into effect the concurrent resolutions and acts of the legislature, for granting certain lands, as bounty lands,” &c. And it is expressly directed, that the letters patent, to be issued pursuant to the concurrent resolutions and previous acts of the legislature, shall be issued in the ñames of the persons who have actual-3y served in the line of the army of the United States, and to their heirs and assigns for-ever; and it is declared, that the lands so to be patented shall be deemed, considered, and adjudged, to have vested in the respective grantees, and their heirs and assigns, respectively, on the 27th March, 1783. Until the report of the Onondaga commissioners, inserted in the journals of the assembly, the 1.7th February, 1800, no doubt existed of the validity of the patents, in the names of deceased soldiers, issued by the commissioners of the land office. The opinion contained in that report is dictated by a narrow and technical spirit; and if the resolutions • and various acts on the subject are attentively examined, it will be found inconsistent with the liberal intentions of the legislature. The Onondaga commissioners admit, that it was the intention of the legislature to make their bounty coextensive with the resolution of congress. Present service, or existence, was not the basis of the grant. The act of the 11th May, 1784, declares all the officers and soldiers belonging to Lamb’s regiment of artillery, in the year 1781, entitled to bounty lands. The war ended in 1782, and many must have died, or been killed, before the 27th March, 1783. All these classes of soldiers were comprehended in the legislative body, and it is clear, that by the words heirs and assigns, it was intended to designate the persons to be benefited by the grants; that is, the representatives of deceased soldiers, and not merely to express the quantity of interest granted, as contended by the Onondaga commissioners. The commissioners of the l&.vi5. office were invested with very extensive and discretionary cowers, in deciding on the persons entitled to the legifi’.a'.'i~e bounty. There are no restrictions or limita.-. tk^srífiL-i.-'wT in the commission. The grants were .in tended b.us. i :w'.;tmerationfor services in therevolutionary-' war, and were to be construed liberally, and not by frigid and artificial rules. But even if the commissioners of the land office had extended these grants beyond the strict letter, yet • having acted by colour of authority at least, their acts ought to be supported. If this view of the subject be correct, then the patent to Heysham was operative and valid, and under it the appellant derived a good title, which enabled him to execute a good and sufficient conveyance for the 300 acres, pursuant to the bond of defeasance. But by the act of the legislature, passed the 27th March, 1803, “the title to all lands before granted by letters patent to officers and'soldiers serving in the line of this state, in the army of the United States, in the late war with Great Britain, and who died previous to the 27th oí March, 1783, are declared to have been Vested in the said persons at the time of their deaths respectively.” This may be considered as a declaratory law. When the appellant, therefore, filed his answer to the supplemental bill of the respondent, he had a perfect, and undoubted title to the land. If a party has a title at the time of the decree, or, at least, at the time of filing the bill, it is sufficient.
    
    
      Van Vechten, for the respondent.
    1. The mortgage m this case has been recorded, pursuant to the directions of the act; but there is no record of the defeasance. It is not incumbent on a person taking a mortgage by assignment, to inquire beyond the face of the deed assigned to him.‡ If there be any secret trust or condition between the original parties, the assignee is not bound by it without notice. This principle t is within the reason and equity of the act requiring mortgages to be registered. The registering is intended as a notice; and a subsequent bona fide purchaser, without notice of any other instrument, ought to be protected against its secret conditions. If it were otherwise, it would be in the power of the parties to defeat a mortgage, though recorded, by a separate' deed of defeasance. But by the act concerning mortgages,
      (§ 3.) every deed conveying real estate, whichby any other instrument, or-writing, shall appear to have been intended as a security, though it be absolute in terms, shall be considered as a mortgage, and liable to be registered ;  and the person for whose benefit such deeds are made shall not have the benefit of the act, unless the instrument operating as a defeasance be also recorded. The act intended that the concealment of such an instrument should avoid it, as against a bona fide purchaser, without notice. It is a fraud, and if any person is to suffer, it ought to be he who made the secret agreement. There is no reason why this rule, relative to absolute deeds with defeasances, should not be applied to a mortgage with a defeasance. Again ; this mortgage contains a power to sell, on the non-payment of the money. Suppose the mortgagee; or his assignee, had proceeded to sell the mortgaged premises, under this power, pursuant to the directions of the act, would not the purchaser have acquired a complete title, discharged from the defeasance ? Then, by analogy, a bona fide purchaser, or assignee of the mortgage, without notice of the defeasance, ought not to be bound by it. Why was not this condition inserted in the mortgage itself? By not doing so, the purchaser of the mortgage has been led into a mistake. In Goodtitle v. Morgan,
      
       it is said, by justice Bailer, to be an established rule in a court of equity, that a second mortgagee, who .has the title deeds, without notice of any prior encumbrance, shall be preferred ; because, if a mortgagee lend money upon mortgage, without taking the title deeds, he enables the mortgagor to commit a fraud. Whether this rule has been adopted by our own courts, or not, is of no consequence; it is the very principle on which our registering act is founded. Here is a mortgage in the usual form, duly recorded ; and an instrument of defeasance, containing terms and conditions totally different. If such a secret agreement is to prevail against a bona fide ¡purchaser, the registering act may be completely evaded.
    It is said, that the assignee must take the mortgage, subject to all the equity existing between the original parties. This, no doubt, is the general rule. But the equity intended by that rule is an equity, clearly arising on the face of the security, and growing out of it, and not an equity arising out of a separate and secret agreement. If an equity did exist, it may be rebutted. Why did not the party holding the defeasance put it on record at the time the tender was made? The keeping the defeasance in his pocket was a circumstance indicative offraud. Rawlins could not have the defeasance recorded, as it was not in his possession ; it was the duty of the appellant to put it on record, and he has, by his own fault and neglect, forfeited all claim to the protection of the court. There is a superior equity existing in the case of the respondent. Any equity existing in favour of the appellant grows out of the bond of defeasance, and on this he may have his remedy against the obligor.
    It has been said, that a grantor may annex what condition he pleases to the estate granted; but there is a distinction between a condition and defeasance. A condition is contained in the same deed; a defeasance is created by a separate deed. In the first, the deed itself contains notice of the condition. The latter being dehors the grant, no notice exists.
    2. But has the appellant performed the condition of the bond of defeasance? He tendered what he called a good and sufficient deed ; but he admitted, at the same time, that his title was no better than it was at the time the bond was executed, when' he acknowledged that he had not a complete title. In his answer to the supplemental bill, the appellant states the reasons why the deed was not given, immediately on the conclusion of the bargain for the purchase of the farm at Johnstown, and admits the necessity of a legislative provision, to remove doubts concerning his title. He claimed, then, to be discharged from the condition of the bond of defeasance, on tendering a deed, when he admitted, at the same time, that his title was no better than at first. If it was a good and perfect title at first, there was no necessity for postpo* ning the conveyance. But what is meant by a good and sufficient conveyance? A conveyance, ex vi termini, means a title to be conveyed. A condition to make an assurance, means an effectual and operative assurance. A deed good in form only, is not a performance of such a condition. If the appellant means to claim the benefit of the defeasance, he must show a strict performance. The intention of the parties is manifest, that an estate to Raw-lins, his heirs and assigns, was to be conveyed. If a man covenant to convey a title, and that title be in another, the covenant is broken as soon as it is made.f The law requires a faithful and substantial performance of conditions, not one merely colourable. But it is contended, that the appellant had a good title. By common law, a grant to a man deceased; is void, 
       If these patents, issued in the names ofdeceased soldiers, are valid, it must be by the provisions of some statute. The act of the 35th July, 1782, sets apart a certain tract of land for the troops of this state, serving in the army of the United States, that is, who were then living. The subsequent resolutions and acts of the legislature, designate the persons entitled to the legislative bounty, to be the officers and soldiers serving in the army of the United■ States to the end of the war, or who were discharged from service, or were slain in battle. This latter description shows, that no lands were intended to be given to the representatives of soldiers deceased, who were not slain in battle. Though the various objects pf legislative bounty are particularized, there are no provisions for soldiers already deceased. A benefactor may limit the extent of his bounty in any manner he pleases. No persons can claim it who are not clearly designated in the grant. The commissioners of the land office may have been deceived by the returns made to them ; but if they did grant lands to persons really not entitled under the acts of the legislature, those grants were void. The act of the 6th April,, 1790, fixes the time when the estates granted were to vest, and designates those in whose names patents were to be issued. These were persons.then in existence, and who. were entitled to lands pursuant to the act of the 25th July, 1782, and the concurrent resolutions of the senate and assembly. A soldier who died of intemperance, or who had been killed in a duel, previous to that period, could not be entitled to land. It is clear, that the persons intended by the legislature, were persons living on the 27th March, 1783, and such as had died in battle. But it is said, that the act of 1803, is a declaratory act, and has confirmed all the grants in question. If the act was declaratory, it could not give effect to a conveyance made in 1800, which was then inoperative. But it contains provisions in derogation of vested rights ; and requires a. compensation to be made to persons who had settled on the lands under colour of title. It cannot, therefore, be considered as a declaratory act. ' But the appellant, in his answer, to the supplemental bill, admits that his title was incomplete. The Onondaga commissioners were of opinion, that the patents issued in the names of deceased soldiers, were not valid ; and the supreme court in the case of Jaclcson ex dem. Sherwood, v. Phelps,
      
       were of the same opinion. It appears, then, that there were serious doubts entertained by lawyers, as to the validity of the appellant’s title. The tender of a conveyance of a title so doubtful can never be considered as a performance of a condition to convey a good title. A court of equity will not compel a party to accept a bad or doubtful title.!' That the title was made valid before the decree of the chancellor was pronounced, cannot vary the case. There was an alternative on the part of the appellant, either to pay the money, or convey a perfect title, and the respondent is entitled to the benefit of it. The appellant having failed to perform the condition he is bound to pay the money. The respondent does not come to ask aspeare pei/cu-mance, but merely money, which the appellant promised to pay, in case he did riot convey to Rawlins a good title, on the 1st May, 1800. There is no penalty or forfeiture claimed by the respondent; he demands only the payment of a sum of money justly due, and which the appellant stipulated to pay. There is no pretence, then, of a relief against a forfeiture ; but the appellant seeks relief against an obligation for the payment of money. Again ; as to the act of 1783, the respondent is an assignee, and since that act, no tender of any conveyance has been madeto him by the appellant. As to the admissibility of the parol evidence, it may be observed that it was competent to the respondent to repel the facts stated in the appellant’s answer by such evidence. If those facts were true, there was a mistake which may be shown by parol evidence. Again; the concealment of the defeasance was fraudulent, and in case of fraud, such evidence is admissible. This species of evidence may be received to explain what is doubtful or equivocal, though it cannot be allowed to contradict a written instrument.
    
    
      Henry, in reply.
    The statute relative to- mortgages was intended to protect mortgagees as to their priority, and not titles derived under mortgagees. The section of the act in regard to defeasance, relates solely to purchasers under a mortgagor, where there is a mortgage or defeasance not recorded. It does not apply to a case like the present. Cujus est dare ejus est disponen. He who has the power to grant, may annex what condition he pleases, and such condition always remains attached to the grant. It is the business of the purchaser of such estates to protect himself by covenants against the conditions. The maxims of caveat emptor may be applied to the respondent. A covenant to execute a good and sufficient deed does not mean that a perfect title is to be conveyed, but that the deed is to contain good and sufficient covenants. It has been held, that a condition to malee an assurance did not require that the deed should contain a warranty or covenant, but the rule now seems to be, that it should contain reasonable covenants. The parol evidence was clearly inadmissible, as there was no latent ambiguity. There is no ground for the suggestion of fraud. No fraud or mistake is charged in the bill; and that would be a sufficient reason for rejecting the parol evidence. It is evident that Rawlins "And the appellant mutually relied on each other, and made no examination into their respective titles. This shows that they meant to depend on the covenants to be contained in the deeds. Again; the words in the acts of the legislature, “serving in the army ofthe United States,” were merely descriptive of the corps, or line, in which the soldiers to be rewarded, were. They are not used to describe them as still living. The tacit acquiescence of the legislature as to these patents, and the sales under them, for so many years, until the Onondaga commissioners suggested their doubts, was alone sufficient to render them binding on the state. In the case of Jackson ex dem. Sherwood, v. Phelps, it is true, Mr. Justice Livingston intimates some doubts on the validity of these patents; but the supreme court have cautiously avoided giving any opinion on the question.
    
    
      
      2 Vem. 692. 765. 1 Vesey, 123. lFj.Ca. Ab. 44, 45.
    
    
      
      
        Powell on Contracts, 266. 267. 1 Brown, C. C. 332. 2 P. Wms. 629. 630. 10 Pes. jun. 315.
    
    
      
      
         'f^Qr^n>
      
    
    
      
       A deed purporting- to contain an absolute conveyance of land cannot be avoided or controlled in its construction. by parol evidence of a condition or trust not expressed in the deed. Flint v. Shelden 15 Wsas. 443.
    
    
      
       See the subject fully treated, in Roberts on frauds pp. 1 — 90.
    
    
      
      
         Journals of_ Congress, v. 1. p 337.
    
    
      
      
        Qreenleaf's ed. of the L. JT. F. v. 1. p. 55.
    
    
      
      
        Qreenleaf's ed. of the JL. JY. Y. v. 1. p. X25.
    
    
      
      
         Qieenleafs ed. of the JL. JV. F. v. 2. -p. 381.
    
    
      
      
        QreerJeafs cd of the JL. JY. F. v. 2. p. 332.
    
    
      
      61. JV*. T. 399. -
    
    
      
      
        Powell on Martg. 201, 202. 4th cd.
    
    
      
      
         A conveyance by deed cannot’ be made a mortgage by a defeasance which is not by deed. 4 Mass. T. R. 443. ^ '
    
    
      
       l L. N. T. 480.
    
    
      
      
         Term, 762,
    
    
      
      
        See ante, 510. Johnson v. Stags-
      
    
    
      
      
         Gomyns1 Dig. (A.) 2 Saimd. 67. n. note 2.
    
    
      
       Camyns’ Dig, Cond. (H.) 525.135.
      
    
    
      
       2 SuundA8. b. note.
      
    
    
      
      
         Shep.Touch. 139. 166.170.
    
    
      
      
         Co Lilt 221. 222. Sir T. Raym. 464. 1\ Jones, 191. Skinner, 3%
      
    
    
      
       A grant to be valid must be to a corporation, or to some person named, who can take by force of the grant, and hold in his own right or as trustee. 8, John. Rep. 385. ...
    
    
      
       3 Caines,62.
    
    
      
       2 P. Wms. 2 Vesey. jun. 100.1 Broten, c c. 65. ' 1 Vesey, jun. 565.
    
    
      
      
         Roberts on Frauds, 25, 26, 27.
    
    
      
      
        Com. Dig. Cond, (H •)
    
    
      
      
        Jhxtt, p. 81
    
   Kent, Ch. J.

Whether the respondent did or did not know of the defeasance, when he took an assignment of , t i , , the bond and mortgage, appears to meto be immaterial, as it respects the claims of the appellant. He took the bond and mortgage, subject to every defence that existed against them in the hands of Rawlins. Clute could not be prejudiced by the assignment. His right, founded upon the bond of defeasance, remained the same. There is no rule of equity better settled, than that a bond, or other chose in action, is liable to the same equity in the hands of the assignee that existed against it in the hands of the obligee, (2 Vern. 692. 765. 1 Vesey, 122.) The registry act concerning mortgages has nothing to do with this case. The respondent does not stand here in the character of a bona fide purchaser of lands, but as as-signee of a bond. He took the bond as payment or security for a debt, and the mortgage by which that bond was secured, followed it as an incident. The case before us is, therefore, tobe considered, and decided, in the same manner, and upon the same grounds, as it would have been if Rawlins had never assigned the bond, and had himself filed a bill to foreclose the mortgage.

Another point made in the cause, is, as to the competency of parol proof to explain what was intended by a good and sufficient deed or conveyance of the 300 acres in Calen. I agree that this proof was in a great measure, unnecessary in the present case, for a covenant to execute and deliver a good and sufficient deed of a piece of land, does not mean merely a conveyance good in point of form. That would be a covenant without substance. But it means an operative conveyance ; one that carries with it a good and sufficient title to the lands to be conveyed. The appellant confesses, in bis original answer, that this was the understanding of the parties in the present case, for he states, that as his title to the 300 acres was not complete on the 28th of February, 1800,. in order toinsurea conveyance thereof, by thelst of May, he executed the bond, and mortgage, and took the defeasance.

.This being the meaning of the parties, the next inquiry is, has the appellant conveyed or tendered such a title ? This inquiry has led the counsel into a long and critical examination of the validity of patents granted to soldiers, who died before the date of the concurrent resolutions of the 27th March, 1783. It will not, however, be necessary to give any opinion on that question, because it is evident, that the parties did not consider those patents as conveying the requisite title, within the purview of their contract. When Clute tendered his deed in April, 1800, the title was in the same condition as it was when the defeasance was executed in February; and then the title was not complete, according to the confession of the appellant, in his original answer; and in the supplementary bill and answer, both parties admit that doubts existed as to the goodness of such titles. That those doubts were deemed serious and weighty, is evident, from the report of the Onondaga commissioners, made in February, 1800, and from the act of the legislature of the 5th of April, 1803. In the year 1800, the validity of those patents had not been established, nor those doubts removed, either by an act of the legislature, or the judgment of a court of law. It was this doubt that rendered the title incomplete, in the contemplation of the parties, on the 28th of February, 1800, and which induced them to postpone the execution of the deed from February to May. This fact is sufficiently evident from the allegations of the parties, without resorting to the parol proof. A doubtful title, undone declared by a tribunal specially appointed to inquire into, and decide on the titles to the military lands, was not the good and sufficient title intended and _ ® , required by the defeasance. It is upon this ground,, and without giving any opinion on the question touching the original validity of the patent in the case before us, that Í consider Cluie as having failed in the performance of his condition, and that his tender in April, of a title, no less doubtful, and no less incomplete, than it was in February preceding, did not save the forfeiture of his bond*

But it is conceded, that the act of the 5th of April, 1803, made valid all such letters patent, and that when the respondent filed his supplementary bill, in June, 1803, the appellant had a good and sufficient title. He ought, then, in my opinion, to have been admitted to a specific performance of his contract. It is an acknowledged rule in chancery, that if a party entering into a contract to sell, has a good title at the time of the decree, or the coming in of the master’s report, itis sufficient. The inquiry, in such cases, is, whether the seller can then, and not whether he could at the time of the contract, make a title. (Langford v. Pitt, 2 P. Wms. 629. 10 Vesey, jun. 315.) The injury, if any, arising from this delay, to the owner of the bond and mortgage, is susceptible of a just rule of compensation. When such a rule can be found, it removes every obstacle to a relief against the forfeiture of the contract, arising from the failure of the performance of the condition. (1 Fonb. 387, 388. The compensation, in the present case, for this delay, is the interest on the bond; and this may be considered as the rule of compensation agreed on by the parties.

For these reasofis, I conclude, that the decree of foreclosure ought to be reversed, and that the appellant is entitled to have his bond and mortgage delivered up to be cancelled, upon his executing and delivering to therespondent, a good and sufficient conveyance of the 300 acres in Galen, in such form, with such covenants, and in such time as the court below shall direct. But as the title may have since become affected in the hands of Clute, it would be proper for the court below to refer it to a master to report, whether the title continued complete, up to the time of such inquiry. And the appellant must, further, pay interest on the bond, from its date. The time for which interest ought to be paid, may admit of different opinions. It ought clearly to be carried down to the time of filing the answer to the supplementary bill, because, until then, the appellant was in default. In that answer, he declared himself ready, and offered to convey, and he was then in the condition to convey, a good title. It may be said, that the respondent ought to have accepted that offer, and that he ought not, afterwards, to receive interest, as it was his own neglect not to have taken the title. I was, at first, of this opinion ; but, when we consider that the general and loose offer in the answer, was not accompanied with the execution of any actual conveyance, nor with the tender of any of the costs up to that time, and. that the land was, in the mean time, continued in the possession of Clute, and, for aught that this court can know to the contrary, may have been productive by means of the timber or other products of the soil, I have rather concluded, that the appellant ought to pay interest to the time of this decree, together with the costs in the court below.

This being the unanimous opinion of the court, it was, thereupon, ordered, adjudged and decreed, that the decree of his honour the chancellor be reversed, and that the bond and mortgage mentioned in the respondent’s bill be delivered up to be cancelled, upon the appellant’s paying the interest on the said bond, from its date to the time of this decree, with the costs in the court below, and upon the appellant’s conveying to the respondent, his heirs and assigns for ever, a good title to 300 acres of land, in lot No. 56, in the township of Galen, by a deed in such form, with such covenants, and to be executed within such time, as his honour the chancellor shall direct, after it shall have been ascertained by a reference to a master, or otherwise, that the title in the appellant remains good and unencumbered ; and that the pleadings and proceedings sent here from the court of chancery be remitted, to the end that this decree may be carried into execution.

Judgment of reversal. 
      
       An assigned obligation is subject to the same equity in the hands of the assignee as it wasin the hands of tiae original obligee. 1 Pool, 349.
     