Coray v. Mathewson
New York Supreme Court
On the 18th of March, 1870, the plaintiff and defendant entered into a contract under their hands and seals, wherein and whereby the plaintiff consented and agreed to and with the defendant to sell and convey to him certain lands in the town of Almond, in the county of Allegany, containing about 315 acres of land, and to procure a search of record showing title free of all incumbrances by the first of May then next, and upon performance of the conditions in said contract to…
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On the 18th of March, 1870, the plaintiff and defendant entered into a contract under their hands and seals, wherein and whereby the plaintiff consented and agreed to and with the defendant to sell and convey to him certain lands in the town of Almond, in the county of Allegany, containing about 315 acres of land, and to procure a search of record showing title free of all incumbrances by the first of May then next, and upon performance of the conditions in said contract to be performed by this defendant, he would convey said* premises to him by a full covenant warranty deed on said first day…
1Opinion of the Court
By the Court, Mullin, P. J.
Upon the failure of the plaintiff to deliver a search showing his title to the land free from incumbrance, the defendant might have rescinded the contract. In order to rescind he must have surrendered the possession. (More agt. Smedburgh, 8 Paige, 600.)
Neglecting to rescind and yet retaining the possession, he cannot be permitted to insist upon the plaintiff’s breach of the contract to deliver the search as a defense to his action for specific performance, it the plaintiff" was able at the trial, to make such a title to the premises as the defendant is entitled to…
2Cases cited8 opinions
- Winne v. ReynoldsNew York Court of Chancery · 1837
- More v. SmedburghNew York Court of Chancery · 1841
- Hill v. HillNew York Supreme Court · 1848
- Tompkins v. . HyattNew York Court of Appeals · 1863
- Miller v. MacombNew York Supreme Court · 1841
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