Everson vs. Kirtland, 4 Paige Ch. 628

The Chancellor. The vice chancellor has put his decision in this cause upon the ground of a mistake of both parties as to the existence of a title in Martin Kirtland, in the Ohio lands intended to be conveyed in payment for the Vernon farm. The complainant contracted for lands lying in township No. 6, although he would probably have made the bargain as readily if he had been informed that the lands he was to receive in payment lay in the other township.

Upon this supposition, if the defendant or his father had really owned the lands in .township No. 5, it probably would have been doing no injustice to the complainant if -he had been compelled to take the lands described in the patent.

But although, from the testimony, I have no doubt that the defendant intended to sell, and to procure a deed from his father for the lands mentioned'in the.patent, and that he really misread the description in the patent, I think there is sufficient evidence, -from the testimony of bis own witnesses and from bis exhibits, to show that he intended to impose a title.upon the complainant which he knew to be imperfect.

In the first place, the person who drew the original contract between the parties, although he described the land correctly, except as to the number of the township which was undoubtedly misread, and gave the precise date of the patent, yet he appears to have stopped short in bis description in not stating to whom the patent was given. This agreement bears date on the 17th of January ; and yet exhibit B., which bears date, and is proved to have been written, about a ibrtnight before, ■ contains a false recital, which is also contained in the second deed executed by the defendant’s father, that Ira B.

Kirtland was seised of the Ohio lands by virtue of a conveyance from Martin Kirtland and the other heirs at law of the-deceased soldier, and that such lands had come to Martin Kirtland by descen t from his deceased son, and by a quit claim from the widow".

The defendant, therefore, when he procured that deed to be drawn,in which his own name was origin.ally inserted as the grantee from his father, must have known that the five brothers and sisters of his father were entitled to five sixths of the land under the patent, as the heirs at law of his grand-father; and this recital, which his father noyr swears was absolutely false and unfounded, must have been inserted therein for the purpose of deceiving and imposing upon the complainant, and to induce him to suppose the title was perfect.

There is the more reason to suspect that such was the intention of the defendant at that time, from the fact that a similar imposition was actually attempted to be practised upon the complainant in the deed which was offered him on his return from Ohio. Even the father was imposed upon in that case; for he swears that he would not have signed that deed if he had known such false recitals were contained therein. The father probably honestly supposed, as he states, that his title was perfect under the patent, as heir to his son Ira, to whom he had promised the land before the patent was obtained.

The only conclusion I can draw from these facts is, that the defendant was, from the beginning, aware that his father’s title to the Ohio lands was defective, and that five sixths of the land belonged to other persons. That he concluded in the first place to take a deed from his father, containing these false recitals, showing a title through a conveyance from all the patentees to his brother Ira, and through him to his father; and that exhibit B. was prepared accordingly.

That finding a deed with warranty would be required from himself in that case, he concluded to keep back the patent, and to give an agreement for a warrantee deed from his father, concealing the fact that the patent was to the father and the rest of the heirs also. In this he probably would have succeeded, had it not been for his own mistake, in misreading the patent, by which the wrong township was inserted in the agreement and in the deed.

And finding that he had made that blunder, he then attempted to do what he had contemplated doing soon after the execution of the agreement; that is, to impose upon the complainant, by a deed from Martin Kirtland directly to him, containing false recitals which apparently showed a good title in the father to the whole of the Ohio lands, under the patentees. The covenant of the’defendant was, to cause the Ohio lands to be conveyed to the complainant by a good and sufficient warrantee deed, to be executed by Martin Kirtland and wife, free and clear of all encumbrances.

And neither of the deeds, which were given or offered to the complainant, would have been a compliance with the terms or the spirit of the covenant; even if there had been no mistake in the number of the township. A covenant to cause to be conveyed by a good and sufficient warrantee deed, is not complied with by the mere giving of a warrantee deed, where the grantor has no title to the land, or where his title is imperfect. It must be a deed good and sufficient, both in form and substance, to convey a valid title to the land which the covenantor has agreed should be conveyed.

But the deeds in this case were not good, either in form or substance. Conveyances for lands in the state of Ohio were originally subject to the provisions of the ordinance of congress of 1787, relative to the North Western Territory; which ordinance is still the law of that state, unless it has been changed by statute. By the former, as well as the statute law of that state, a conveyance of land, to be valid, must be executed in the presence of two witnesses.

And the supreme court of the United States has decided that a deed of lands in Ohio, executed in the presence of one witness only, although duly acknowledged and recorded, is absolutely void. Neither of the deeds in the present case were executed in the presence of more than one witness; nor had the grant- or any good and available title to convey, except as to an undivided portion of the lands. If there was no fraud in the case, perhaps the objection might have been made that the complainant had a perfect remedy at law upon his covenant.

But as that objection was neither made by demurrer, or in the answer of the defendant, it is too late to make it at the hearing. The vice chancellor certainly has been sufficiently favorable to the defendant, in only charging him for the value of the land as fixed by the parties, in their estimates, at the time of the execution of the agreement, and as specified in the deed. This was the rule adopted by the supreme court, in the case of a bona fide vendor who covenanted to convey lands to which he believed he had a valid title.

And the defendant may think himself fortunate, that the court did not direct a reference to a master to ascertain the value of the lands in township No. 6, which he agreed to convey, and charge him with the full value of those lands, and the interest thereon from the time he should have conveyed them, according to the terms of the written agreement. As those lands were in the hands of actual occupants, the value thereof, with their improvements, would probably far exceed the estimated value of $2,50 per‘acre.

And a party who attempts to commit a fraud, if he makes a slip, is not entitled to relief against his own mistake in favor of the party intended to be defrauded. The appellant has no right to complain of this decree, as it is as favorable to him as the circumstances would justify. It must therefore be affirmed, with costs.