VANN, J.

The main question presented by this appeal is whether the defendant met its covenant to convey the premises by tendering a quitclaim deed thereof under the circumstances found by the trial court. The subject of the contract was a certain parcel of land, and the object of the plaintiff was to buy and of the defendant to sell "all the premises," which were carefully described. The means prescribed by the parties to carry the contract into effect on the part of the defendant was a quitclaim deed. The defendant, however, did not have a perfect title free from incumbrances, for the premises were subject to an inchoate right of dower vested by statute in the wife of a prior grantor. As it could not convey that outstanding right it could not convey the premises, except by leaving them subject to that right. The covenant was to convey a certain parcel of land, not to convey all the right, title and interest of the defendant in that land. A contract to sell land implies ownership and power to give good title on the law day. The plaintiff did not agree to accept a defective title. He agreed to buy "all the premises" described by clear and unmistakable boundaries, and by implication of law this means in an executory contract a good title to the whole thereof, free and clear from incumbrances. Although the writing does not say so, the law says so, and the law is part of the writing. When a vendor agrees to sell a piece of land the law imputes to him a covenant that he will convey a marketable title unless the vendee stipulates to accept something less. While, owing to a statute, no covenant can be implied in a deed, in an executory contract to convey land the vendor always covenants by implication to give a good title, unless such a covenant is expressly made or is expressly excluded by the terms of the agreement. Even if the conveyance is to be made without warranties, still the land itself is to be conveyed, and as the grantor can convey only that which he has, unless he has title to the land he cannot convey the land. If his title is subject to a right which may take away part of the land, he cannot in the full legal sense convey the land, for there is an outstanding interest which his deed does not touch. If the plaintiff was bound to accept the deed tendered with a partial defect of title, he would have been bound to accept it even if it conveyed nothing whatever, although the consideration named was $22,000.

These views are supported by the authorities, both ancient and modern. In the leading case in this state, decided in 1854, Judge SAMUEL L. SELDEN, upon a careful review of the previous cases and after an able discussion of the principles involved, with the concurrence of all his associates, held that in every executory contract for the sale of lands there is an implied warranty on the part of the vendor that he has a good title which continues until merged in the deed of conveyance. ( Burwell v. Jackson, 9 N.Y. 535.) This case has been frequently cited but never questioned, and the opinion shows such perfection of learning and reasoning as to make it a landmark in the law. We cite a few other cases to show how the principle has been adopted and applied under varying circumstances. ( Delavan v. Duncan, 49 N.Y. 485, 487; Leggett v. Mutual Life Ins. Co. of N.Y., 53 N.Y. 394, 398; Moore v. Williams, 115 N.Y. 586, 592; Vought v. Williams, 120 N.Y. 253, 257; Blanck v. Sadlier, 153 N.Y. 551, 556.)

The agreement of the plaintiff to accept a quitclaim deed as the means of transfer was not a waiver of the defect. A quitclaim deed is as effective as any to convey all the title the grantor has, and a deed with all the covenants known cannot strengthen a defective title, but can simply protect from loss on account thereof. The sale was subject to existing liens and to existing restrictions of record, and it could be subject to no other defect unless it was also specified. As was said in Moore v. Williams ( supra): "The express stipulation that he (the vendee) was to take the lot subject to an incumbrance specified shows that in the minds of the parties there was to be no other incumbrance upon the lot. But, aside from the language used in the contract it is familiar law that an agreement to make a good title is always implied in executory contracts for the sale of land, and that a purchaser is never bound to accept a defective title, unless he expressly stipulates to take such title, knowing its defects. His right to an indisputable title, clear of defects and incumbrances does not depend upon the agreement of the parties, but is given by the law." (p. 592.) If the plaintiff knew of the defect when the contract was signed, he had the right to presume from its terms that a good title would be made before the law day. It is a somewhat common practice to agree to sell land without limitation, although both parties know at the time that some outstanding right must be acquired by the vendor in order to enable him to perform his covenant when the law day arrives.

The defendant insists that the court erred in refusing to find upon its request that the plaintiff knew what a quitclaim deed was and the title it would convey; that before the agreement was executed he had been told by the defendant that the only title it could give was such as it had and no more, and that he knew when he signed the contract that there were existing questions respecting the title.

Assuming, without holding, that there was sufficient uncontradicted evidence to warrant these findings, the written agreement could not be cut down or limited by such facts. Whatever was said before the instrument was signed being merged therein became wholly immaterial, and it is not an error of law to refuse to find an immaterial fact even upon uncontradicted evidence.

The judgment should be affirmed, with costs.

CULLEN, Ch. J., GRAY, HAIGHT, WERNER, WILLARD BARTLETT and HISCOCK, JJ., concur.

Judgment affirmed.