[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 163
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 164 That the defendants had no title to the premises, and were unable to convey them to the plaintiff when a deed was demanded, are undisputed. Whether the covenants in the agreement in suit on one hand to pay, and on the other to give a deed, were concurrent and dependent so far as the *Page 166 payments to be made on the first of October were concerned, or, whether they were independent, and the payment of the entire amount then due was a condition precedent to the right of the plaintiff to a conveyance of the property, or upon default to rescind the contract, is practically the only question in this case. The contention of the appellant is, that all the provisions of the contract relating to the payment of that portion of the consideration constituted independent covenants which the plaintiff was required to fully perform by paying the entire amount before he became entitled to a deed, and it was only within a reasonable time after such payments were made that the defendants were required to give him a conveyance of the property. As sustaining that contention the plaintiff relies chiefly upon the language of the contract. It is to be observed that it, in terms, provides that after the payments mentioned are fully made, the defendants shall execute and deliver a sufficient deed of the premises, and "at the time" deliver a tax and title search, and that "at the time" the plaintiff should execute and deliver a mortgage to the defendants. The appellant claims that this language should be construed as not requiring the delivery of the deed until a reasonable time after the payments were made, and as sustaining that claim, he cites the cases of Morris v.Sliter (1 Denio, 59); Meriden Britannia Co. v. Zingsen (48 N.Y. 247); Kirtz v. Peck (113 N.Y. 222), and Loud v.Pomona Land and Water Co. (153 U.S. 564). The language in the contract under consideration in Morris v. Sliter was very similar to that contained in this agreement, and it was there held that the plaintiff was not required to convey at the time of receiving the last payment, but must do so within a reasonable time after it was made. That case has been several times cited in the authorities to which the appellant refers, and in those particular cases a similar doctrine has been held. These authorities seem to some extent, at least, to sustain the contention of the appellant. But, upon an examination of the cases, it will be observed that in each case the decision was based upon the *Page 167 ground that it was the intention of the parties that the payment should precede the giving of the deed. The intention of the parties, when properly ascertained, must doubtless control in this case as in others involving the construction of written contracts. Moreover, in many of the subsequent cases a principle adverse to that contended for by the appellant has been applied. Thus, in Eddy v. Davis (116 N.Y. 247), an executory contract for the sale of real estate was under consideration. There the vendee covenanted to pay the purchase money in installments, and the contract provided that, upon receiving a part of the consideration named, the vendor should execute and deliver a deed. It was held that the covenants for payments which were due before the time of the conveyance were independent, but that after the time of conveyance the payment and conveyance became dependent and concurrent acts, and that an action was not maintainable to recover a part of the purchase price without proof of a tender of the conveyance before suit brought. Grant v. Johnson (5 N.Y. 247) is to the effect that a covenant in such a contract which goes only to a part of the consideration is not necessarily independent, nor is it conclusive in this respect that the consideration is divisible in its own nature, or that a part of it has been received; nor will the circumstance that one or more covenants in an agreement are independent render others so, but the dependence or independence of such covenants is determined by the order of time in which by the terms and meaning of the contract their performance is to be required. In Beecher v. Conradt (13 N.Y. 108), which involved the construction of a contract for the sale of land, the purchase price was payable in installments, and it was held that when the last installment became due, the payment of the whole of the unpaid purchase price and the conveyance of the land became dependent acts. In James v. Burchell (82 N.Y. 108), a contract for the sale of real property contained a covenant for the erection of houses thereon, and provided that upon the price being paid either in cash or the bonds of the vendee secured by mortgages on *Page 168 the premises, the plaintiff should convey, and it was held that the covenants were dependent and the execution of the mortgages or payment was to be simultaneous with the giving of the deed.
While an examination displays a want of harmony in the authorities upon this question when particular cases are examined and compared, yet it is quite obvious that they all recognize the principle that the intention of the parties is to control in determining the question of the dependence or independence of the covenants in such contracts. In the language of Lord MANSFIELD, in Kingston v. Preston (2 Douglass, 690): "The dependence, or independence, of covenants, was to be collected from the evident sense and meaning of the parties, and that, however transposed they might be in the deed, their precedency must depend on the order of time in which the intent of the transaction requires their performance." Hence, the real question to be determined in this case, upon a reading of the entire contract between the parties, is whether it was their intention that the payments which were due October first, and the delivery of the deed, were to be simultaneous and concurrent acts. The rule, as stated by THOMPSON, J., in Bank of Columbia v. Hagner (1 Peters, 455, 464) is that, "in contracts of this description, the undertakings of the respective parties are always considered dependent, unless a contrary intention clearly appears. A different construction would, in many cases, lead to the greatest injustice, and a purchaser might have payment of the consideration money enforced upon him, and yet be disabled from procuring the property, for which he paid it." An application of these principles renders it quite evident that although a literal reading of a portion of the agreement may tend to sustain the contention of the appellant, still, when the whole agreement is read and properly construed the payments due October first, and the giving of the deed were intended to be dependent and concurrent acts. The plain inference to be drawn from all its provisions is that the deed was to be executed and delivered at the time of the payment of the amount due October first. No *Page 169 fair reading of it would justify the conclusion that the payment of the entire consideration then due, amounting to many thousands of dollars, was to precede the transfer of the title.
We think the trial court properly decided this case, and that the judgment should be affirmed, with costs.
All concur.
Judgment affirmed.