Elder v. Bogardus ( 1843 )

By the Court,

Bronson, J.

Some of the precedents which have found their way into the recent editions of Mr. Chitty’s hook on pleading are of a doubtful character j but the first count of this declaration has not been so well framed as the questionable precedent which the pleader seems to have had before him. The count wants certainty and precision. A part of the count looks as though the complaint was, that the attorney had not procured a conveyance within a reasonable time; while other parts go upon the ground that the plaintiff did not get a good title to the property, free from incumbrances. And it is also uncertain whether the plaintiff means to complain of an insufficient title, or of incumbrances upon the property. It may, however, be infered from the whole count, that the complaint is about incumbrances. There is then this difficulty. Bogardus was only retained to examine the title of Wheaton, and to cause and procure an estate and interest in fee simple to be conveyed to the plaintiff. The fact that there were incumbrances on the property does not prove that the plaintiff did not get the fee simple. A judgment, or even a mortgage lien does not disturb the fee. The owner remains seized of, and can convey the land in fee, notwithstanding the incumbrance. The retainer of the attorney is not broad enough to cover the breach.

There is a further objection to the count. It should have been shown how the property was incumbered. I can not think that the attorney is bound to plead and go to trial on the general allegation that the plaintiff did not obtain an unincumbered title, and was compelled to pay five thousand dollars to discharge incumbrances, without knowing when or how the supposed liens arose, or by whom they were created.

The last objection applies also to the second count. If the plaintiff.has discovered that the property was conveyed subject to incumbrances, which he has been obliged to discharge, there can be no difficulty in his stating what, in particular, the supposed incumbrances were; and the attorney has a right to the information. He may be able to show that the supposed incumbrance had been discharged, as by payment or a release ; that it was void in its creation, as for usury; or that, by virtue of the recording act, the plaintiff has got the property discharged of the lien. But upon this declaration the attorney can not know how to prepare for trial.

At the common law this action on the case would have died with the testator. But it is saved by the statute. (2 R. S., 447, §§ 1, 2.) It is said that the words “ wrongs done” in the first section do not extend to a mere non-feasance; but on considering the exceptions contained in the second section, I think the legislature intended to give an action against the executor for every injury by the testator, whether by force or negligence, to the property of another. The plaintiff might have avoided this question by declaring in assumpsit. The action is, however, well enough in point of form; but the declaration needs amendment.

Judgment for defendant.