Washington and Turner v. Ogden,
66 U.S. 450 (1861)

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U.S. Supreme Court

Washington and Turner v. Ogden, 66 U.S. 1 Black 450 450 (1861)

Washington and Turner v. Ogden

66 U.S. (1 Black) 450


1. Where a written agreement for the sale of lands, executed and sealed by vendor and vendee, binds one party to make a deed for the property and the other to pay a certain sum, part in cash, within sixty days, and the remainder in annual installments, with a bond and mortgage for the deferred payments, the covenants are concurrent and reciprocal, constituting mutual conditions to be performed at the same time.

2. The vendor, in such a case, is not bound to convey unless the first installment be paid, nor is the purchaser bound to pay unless the vendor is able to convey a good title free from all encumbrances.

3. Where the agreement to purchase is expressly made dependent on the "surrender and cancelment" of a former agreement of the vendor to sell the same land to another person, it is a condition precedent that the former agreement shall be cancelled and surrendered.

4. Where the words of the covenant on the part of the vendor are that

Page 66 U. S. 451

he will "make a deed" for the property, there is a covenant that the land shall be conveyed by a deed from one who has a good title and full power to convey.

5. A plaintiff who sues upon an agreement containing such a covenant must aver and prove not merely his readiness to perform it in the words of the contract, but that he had a good title which he was ready and willing to convey by a legal deed.

6. The want of such an averment in the declaration will not be cured by the verdict upon the presumption that the facts necessary to support it have been proved before the jury if it appears by the record that no such proof was offered.

7. Where the terms of an agreement make the sale of land dependent upon the cancellation and surrender of a previous agreement with another person, the acquiescence of the former vendee or his assigns, or the mutual understanding of all parties interested in the former contract that it shall be regarded as at an end, is not equivalent to a surrender and cancellation of it.

8. Acquiescence expressed by parol and mutual understanding that a title shall be released cannot be made a substitute for a deed of release or surrender; executed and recorded deeds under seal can be surrendered and cancelled only by other deeds under seal.

9. An objection to the form of the action or other defect in the pleadings will not be noticed in this Court when it appears from the undisputed facts of the case that the plaintiff is not entitled to recover in any form of action.

This suit was originally brought in the Superior Court of Cook County, Illinois, but removed thence to the federal circuit court upon the petition of the defendants and proof that they were both citizens of Virginia, while the plaintiff was a citizen of Illinois.

The plaintiff filed his declaration in debt, claiming a right to recover the sum of thirty-five thousand dollars, being the amount payable and due on the paper copied by MR. JUSTICE GREER in his opinion, with interest thereon from the expiration of sixty days after the date of the paper, to-wit, 20 July, 1859. The declaration describes fully the property which

Page 66 U. S. 452

Washington and Turner agreed to buy from Ogden, and which is designated in their agreement merely as the property described in the John S. Wright contract of June 4, 1855. The narr. further avers that the contract with Wright to whom the same land had been previously sold by the plaintiffs was surrendered and cancelled, and that the plaintiffs were ready at all times to make a deed to the defendants for the property sold.

The defendants demurred first, and the declaration was amended. Then pleaded thirteen pleas, craving oyer four times of the paper on which suit was brought, and which was fully set out in plaintiff's declaration. The plaintiff demurred to some of the pleas, and some of the demurrers were sustained and some overruled. The pleadings were at length settled so as to raise the questions:

Whether the plaintiff was ready and willing to perform his part of the contract by making the proper conveyance to the defendants of the lands described in the agreement.

Whether the contract previously made with Wright for the sale of the same lands was surrendered and cancelled within sixty days, agreeably to the terms of the contract between the present parties.

Whether it was necessary that Wright should release his title by a written deed.

Whether the plaintiff, in demanding securities for the deferred payments, which he had no right to ask, absolved the defendants from the obligation of tendering the thirty-five thousand dollars now sued for.

Evidence on both sides was given, documentary and oral. The court decided the points of law and the jury found the facts in favor of the plaintiff, for whom a verdict and judgment were rendered for debt and interest amounting to $36,481 66.

The defendants thereupon took this writ of error.

Page 66 U. S. 455

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