Heimburg v. Ismay
The Superior Court of New York City
Exceptions heard at General Term. The action was to recover for the breach of a contract to convey real estate. The defendant had agreed to sell and convey certain real property to the plaintiff. Five hundred dollars of the purchase-money was paid on the execution of the contract; and the balance was to be paid or secured on a day and hour and at a place named in the contract, when the deed was to be delivered.
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Exceptions heard at General Term. The action was to recover for the breach of a contract to convey real estate. The defendant had agreed to sell and convey certain real property to the plaintiff. Five hundred dollars of the purchase-money was paid on the execution of the contract; and the balance was to be paid or secured on a day and hour and at a place named in the contract, when the deed was to be delivered. The contract provided that the premises were to be conveyed in fee simple, and free from all éncumbranees, and the deed to contain the usual full covenants. Upon the day, at the hour…
1Opinion of the Court
By the Court.—Monell, J.
The instruction of the learned judge at the trial was upon the principle, that when a vendor contracts to sell and convey in good faith, believing he has a good title, and afterwards discovers his title is defective, he is to be held liable to nominal damages only. But the principle has no application to this case. The inchoate right of dower of the defendant’s wife was not, nor did it produce, a defect in the title. It was in the nature of an encumbrance upon the property; and unless extinguished by a re*41lease, the defendant could not convey “free from all…
2Cases cited3 opinions
- Pumpelly v. . PhelpsNew York Court of Appeals · 1869
- Holmes v. HolmesNew York Supreme Court · 1851
- Brinckerhoff v. PhelpsNew York Supreme Court · 1864
3Cited by1 opinion
- Per Lee v. BeebeNew York Supreme Court · 1878