Ellis v. Jeans

Burnett, J., after stating the facts, delivered the ojnnion of the Court—Terry, J., concurring.

It is insisted by defendants that the instrument, coupled with possession under it, constitutes a present conveyance, with a covenant for further assurance; while the plaintiff maintains that it is no more than an agreement to convey when the labor mentioned should be performed.

The defendants’ counsel has referred to several authorities in support of his construction, the most important of which is that of Jackson v. Kisselbrack, (10 Johns., 335.) The material portions of the lease were as follows: “ Memorandum of an agreement, made the fifteenth day of January, 1798, between Henry Livingston and Tury Kisselbrack, witnesseth: that the said Henry Livingston hath let, and to farm let, unto the said Tury Kisselbrack, all that farm, etc., situate, etc., in the manor of Livingston, etc., for the rent of twenty bushels of good winter wheat yearly, and every year, for and during the term of the natural life of him, the said Tury, and Elsie, his wife; the place to be surveyed on or before the first day of June next ensuing this date, and then the said Tury is to take a lease for the same. It is further understood by the parties to these presents, that the first rent is to be paid on the first day of January, 1799, and the farm to contain eighty acres of land.”

The defendant, Kisselbrack, entered into the land, and had occupied it fourteen years, and gave in evidence a receipt dated in 1810, for forty bushels of wheat for rent. Under these circumstances, the Court held that the instrument was a present lease. It is to be observed, however, that there is a clear distinction between leases and deeds for the conveyance of land. In leases, the tenant generally takes possession, and the lease takes effect before the rent is paid, and this circumstance is a very strong one to show the intention of the parties. But in the sale of land on time, the usual practice is, either to execute [414]a note for the payment of the purchase-money, and take a bond for a title when the payment shall be made, or to take a deed and execute a note and mortgage to secure the payment.

In this case, Baca executed and delivered to the Pattons and Lyon, an instrument binding himself to make a deed, upon the performance of the condition mentioned,' and they, on their part, executed and delivered to him an article of agreement to perform the labor, which constituted the other portion of the price of the land. The sum of two hundred and fifty dollars was paid in hand, and the sum of five hundred and fifty dollars was thereafter to be paid. It would seem hardly probable that Baca intended this as a present conveyance, when nearly three-fourths of the purchase-money remained unpaid. Although the word sold is positive and in the present tense, yet it must be construed with reference to the whole instrument; and when we look into it, the intention of the parties would seem to have been to execute and deliver to each other mutual executory instruments, so that each might have in his own possession the evidence to enable him to enforce the contract against the other. This view is also supported by the consideration that Baca was only bound, upon the performance of the labor, to execute a warranty deed of a certain character, “ free and clear from all persons claiming under him.” If the instrument be construed as a present conveyance, then the difference between it and the deed thereafter to be made, is too little to afford any protection or security to Baca. Besides this consideration, the parties call the paper “ this instrument of writing,” while they call the conveyance to be thereafter made, a “ deed.” Another consideration is the fact that there are no express words defining the kind of estate intended to be conveyed, whether for years, for life, or in fee simple. This would hardly have been the case, had the parties considered it a present conveyance.