Two questions are presented by the present demand for a new trial. First. Was the defendant, by the preliminary agreement of sale, which was in writing, of the date of November 30, 1849, bound to pay the tax in question? Second. If he was not, has he stated facts enough in his answer to entitle him to the relief he desires?
In the answer this agreement of sale is set out at length. By its first provision the defendant agrees to sell to the plaintiff the property in question for a sum specified, "and to convey and release the same to him, by a good and sufficient deed, on the 15th day of December, 1849." The purchaser then agrees to pay the defendant the sum of $7,500, to assume the payment of a $15,000 bond and mortgage, then a lien on the premises, to procure himself to be substituted as bondsman or mortgagor therein, or to procure the indemnity of Moses Taylor against any liability to the defendant thereon. In the case of Burwell v. Jackson (5 Seld., 535), the party had agreed "to execute, or cause to be executed, to the party of the second part, on the 1st day of June, 1836, a good and sufficient conveyance of" a certain lot of land in the city of Buffalo. It was held that this contract bound the vendors to convey a good title to the purchaser. Here the party contracts "to convey and release by a good and sufficient deed." I see no difference in the legal effect of these expressions. The intent of each is to express an obligation to transfer a good title, and whether that result is accomplished by a deed of release, or by a deed with covenants, is not important. The good title, in each case, is the thing to be obtained, and nothing less than an actual good title will satisfy the contract. When the defendant, therefore, executed a deed, by which he covenanted that there were no arrears of taxes upon the lots conveyed, he assumed no greater liability than his preliminary agreement called for. If he had given a quitclaim deed, he would have remained liable, upon his original agreement, for the amount of this tax. All preliminary negotiations were merged in the written contract. He has but fulfilled that *Page 676 written contract, and has no occasion to ask for the interposition of the courts in his behalf.
These views render unnecessary a discussion of the second question. It is quite possible, from the allegations of the answer, that there was some misconception of the effect of the defendant's contract, and that there was some misunderstanding as to the fact of the existence of the tax in question. No fraud, however, is suggested, nor is it alleged that a mutual mistake existed on the point in question. One of these allegations is indispensable in a complaint asking for a reformation of the contract. (Nevins v. Dunlap, 33 N.Y., 676.)
Upon his own statement of the contract, the defendant has done no more than he was legally bound to do. If unjust or immoral means have been resorted to, to induce him to perform that duty, there is no remedy. In its result the case stands where and as it ought to stand. (Hutchins v. Hutchins, 7 Hill, 104; Story's Eq. Jur., § 203; Randall v. Hazelton, 12 Allen, 412, 415.)
Judgment should be affirmed.
BOCKES and PORTER, JJ., were for reversal.
Affirmed. *Page 677