Caccamo v. Banning

Facts

Benjamin Potter, deceased, by his will devised certain real estate to his wife, and upon her death, devised “all the same over to my granddaughter, Anna Naomi Coverdale (now Caccamo), in fee simple and absolutely forever; but in case the said Anna Naomi Coverdale should die without leaving lawful issue of her body begotten then and in that case I give, devise and bequeath all the same over unto” the children of William B. Potter in fee simple. Anna Naomi Coverdale, now married to Caccamo, purported to bar the estate tail devised to her in the will by use of a statute which provided that an ordinary deed purporting to convey a fee simple absolute “shall have the same effect and operation for barring all estates tail” as a common recovery (a type of common law suit). Then, on April 29, 1950, Plaintiff Caccamo sold the lands in question at public auction to Defendant Delema Banning, for the high bid of $2,025, of which Defendant paid to Plaintiff $405 and agreed to pay the balanc e of $1,620 on June 3, 1950. On June 3, 1950, Plaintiff tendered a deed to Defendant which purported to convey a fee simple title to the lands in question, which Defendant refused to accept and refused to pay the balance of the purchase price based on the grounds that Plaintiff could not convey a fee simple and marketable title to the lands.