Bradley against Osterhoudt.
l’fm* • th® plaintiff, m an Mnt0I1as0sfigúsVeá Er¡ach"laa gené^ running purl ofihVcoTCMm! demun“®eneral
covenant was to a°dvthea plain-’ breach,that, before. the conveyance,, the defendant removed , from w^aMexedto defendant'most lariJYheTlach aBsigoed.
THIS was an action of covenant. The declaration contain-e<^ two counts., The first count set forth an agreement made tK® 8th of August, 18*1 1, by which the defendant covenanted that, provided the plaintiff should, on or before the 1st of May, 1B1-3, páy him the sum of 1,800 dollars, he would, by, the said Istof May, convey to the plaintiff, by good and sufficient deeds, "a -full' and' unincumbered title, and with the usual covenants of seisin and-warranty; extending to the title, and, also, to the, quantity oí land" in the agreement afterwards stated, anousé- > . , . , ' , and certain lands described' mine agreement: and covenanted. . ° ’’ • , ? also, that he would not, in the mean time, cut any wood or tim* ber from the lands, except for firewood, and that he would not. feed-the lands in the spring of the year 1813, and that he would not remove the straw and manure made thereon, nor work any quarries on the land ; and the plaintiff, on his part-, covenanted to. pay the sum of 2,937 dollars arid 50 cents, 1,800 dollars of. which was to be paid on or before the 1st of IRéy, Í813, another part of, which was to be paid by satisfying, a mortgage on the land; and indemnifying the defendant therefrom, and the residue to bé paid at subsequent specified periods-; and that the plaintiff would secure the performance of his contract, by a mortgage of the lands to the defendant. The'plaintiff then averred performance of the covenants in the agreement contained, on his part to *be performed, and that the defendant had executed a conveyance; iff pursuance of the agreement, and then assigned two breaches; first, that there were, long before, and at the time of the date and execution of thé agreement, to wit, on the 8th of August, 1807, standing on the farm, and annexed to the freehold, and making part of the farm, a cider' mill, and adder press, and all the parts áhd apparatus ffor. grinding .apples and-. *405•making cider, the whole covered by a thatched roof, and being of the value of 100 dollars ; and that, on the 22d. of December, 1812, the defendant removed the same from the farm to some placé unknown, to the plaintiff, and never hath returned the same to the farm or to the plaintiff, and so the plaintiff saith, that the defendant hath not conveyed the farm to him according to the true intent and meaning of the said covenant and agreement. The second breach was for carrying away fifteen, loads of straw inade on the farm. . ,
In the second count, the plaintiff after stating the agreement, and averring performance of the covenants on his part, assigned, for breach, the removal of the cider mill, press, and appurtenance's.
The defendant craved oyer of the agreement, and pleaded, that, by the 1st of May, 1813, he did convey to the plaintiff, by a. good and sufficient deed, a full unincumbered title, and with ushal covenants Of seisin and warranty extending to the title, and, also, to the quantity, of the land in the agreement specified, excepting such, incumbrances as are therein excepted ; ¡and that he did not cut any wood except for firewood; and that he did not feed the-lands in the spring of 1813; and that he did not remove from the farm the straw and manure made thereon, nor work any quarries on the land.
To this plea there was a general demurrer and joinder.
C. H. Ruggles, in support of the demurrer.
He cited Cro. Eliz. 7. 1 Sid. 48. 3 Com. Dig. Condition, (M.) 1 Hen. Bl, 270. Com. Dig. Pleader, (C.) 58, 10 Johns. Rep. 267. 1 Hen. Bl. 258, 259. 3 East, 38.
J, Tallmadge, contra..
He cited 3 East, 38. 6 Johns. Rep. 5. Howes v. Barker, 3 Johns. Rep. 576. Houghtalling v. Lewis, 10 Johns. Rep. 297.
Per Curiam.
This is an action of covenant upon articles of agreement, by which the defendant covenanted to convey to the plaintiff by a good and sufficient deed, a full unincumbered title to a farm and piece .of land therein specified. The plaintiff in his declaration, assigns, as a breach of the covenant, that the defendant, after the making and execution thereof, and before the giving of the deed, removed from the premises u cider mill, *406which is averred to haye been annexed to, the freehold, .an! making a part of the fan», and so the defendant hath not eon-veyed to Him, the plaintiff, the said farm of land, according to the true intent and meaning .óf the .said covenant. .Tim defendant, after craving .oyerof the ¡agreement,, pleads, that he did,, within the timé therein specified, convey, to. the plaintiff, by a good and sufficient deed, a, full unincumbered title to the land in the said’ articles specified. To which plea there.is a general demurrer. This plea is bad. A particular breach having been, assigned in the declaration, the plea should have answered it. Whether the covenant to convey the farm would: also embrace the cider mill, might depend on circumstances. When the declaration avers, that it was annexed to the freehold, and making a part of the farm, the plea should have answered this breach. If the defendant relied on the acceptance of the deed as a. fulfilment and discharge of the covenant, be ought to have so pleaded. The general plea of performance is not a sufficient answer to the special breach assigned. The. plaintiff is, accordr ingly, entitled to judgment, with, leave, however, to the defends ant to amend his plea, . ,
Judgment for the plaintiff?