Anthony E. McDonough Et Al v. Samuel E. Hanger

• Decision Date: 09 October 1920
• Citation: 111 A. 452,94 Vt. 195
• Parties: ANTHONY E. MCDONOUGH ET AL v. SAMUEL E. HANGER ET AL
• Court: Vermont Supreme Court

111 A. 452

94 Vt. 195

ANTHONY E. MCDONOUGH ET AL v. SAMUEL E. HANGER ET AL

Supreme Court of Vermont

October 9, 1920

May Term, 1920.

ACTION OF CONTRACT to recover damages for breach of covenant of seisin. Plea, the general issue. Trial by Court at the September Term, 1919, Rutland County, Fish, J., presiding. Judgment for the plaintiffs. The defendants excepted. The opinion states the case.

Judgment reversed, and cause remanded. Let the defendants there apply for transfer into equity for reformation of the deed, if they be so advised.

William H. Preston for the defendants.

Henry L. Clark and Walter S. Fenton for the plaintiffs.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

POWERS

This is an action of contract on a broken covenant of seisin. At the trial below, the plaintiff put in evidence the deed containing the covenant sued on, and, reserving the right to prove his damages, rested, claiming that the burden was thereby cast upon the defendants to prove the performance of their covenant. The court so ruled, and the defendant excepted. In support of this ruling, the plaintiffs call to our attention various cases from other jurisdictions so holding. But these decisions are all founded upon the common-law rule, which, it may be admitted, was just what the plaintiffs here claim. This rule, however, was so peculiar and created a situation so anomalous that it provoked from Judge Cooley, when it was insisted upon in Ingalls v. Eaton, 25 Mich. 32, the statement that if such was the rule, it was "probably the only instance in the law in which the mere assertion of a claim against a party is sufficient prima facie to establish it." With characteristic terseness, he then proceeds to show the fallacy of the doctrine when applied to present-day conditions. The rule had its basis, as is shown in an interesting opinion in Woolley v. Newcombe 87 N.Y. 605, in the English system of conveyancing, whereby the grantor, in many cases, for the very purpose of enabling him to establish his title when occasion should require retained his title deeds, which were not then a matter of public record. But under a registry system like ours, no such rule is necessary; for the condition of the title is equally accessible to both grantor and grantee.

It is of little importance to us, however, to know what the common-law rule was or why it was so. Our Practice Act governs the case before us. When the defendants were confronted with the charges contained in the complaint, they were at liberty to deny them, or some of them, or they could make a brief statement of the facts relied upon in defence. They could not do both. The language of the act precludes this. This is made clear by the recent holding in Dernier v. Rutland Ry. L. & P. Co., ante p. 187, 94 Vt. 187, 110 A. 4. The record before us shows that these defendants first filed a general denial; and, if they had stopped there, all would be clear enough, for this put the plaintiffs to the proof of every material allegation of the complaint. Id. But the defendants subsequently filed a further answer in which they denied the breach of the covenant, and alleged that they did keep and perform the same. It was in this last phrase that the common law would find an affirmative which the defendants would have to prove. But if this further answer is anything more than a denial of facts alleged in the complaint, it is improper. For, as we have seen, the defendants had availed themselves of a statutory general issue, and they could not thereafter avoid the facts alleged against them. See Powers v. Rutland R. Co., 83 Vt. 415, 76 A. 110. In these circumstances, we think this further answer should be considered as nothing more than a denial of the breach alleged in the complaint and as adding nothing to the general denial already on file. This leaves the plaintiff with the burden of proving, not only the covenant, but the breach of it. Dernier v. Rutland Ry. L. & P. Co., supra, is full authority for this holding, and is in entire accord with the decisions in actions on this covenant standing on statutory general issues. Ingalls v. Eaton, supra; Woolley v. Newcombe, supra; Peck v. Houghtaling, 35 Mich. 127; Hamilton v. Shoaff, 99 Ind. 63; Wine v. Woods, 158 Ind. 388, 63 N.E. 759; Eames v. Armstrong, 142 N.C. 506, 55 S.E. 405.

The deed in question is dated August 11, 1903, and describes the land conveyed as follows: "Bounded on the east by South Street, so-called; * * * on the south by the Rutland and Whitehall Railroad; * * * west by the watercourse flowing from the mills at said Hydeville; and on the north by the center of said watercourse passing through the center of the waste gate of the stone dam, and thence easterly in the same line to said South Street, * * *"

The only question is in regard to the west call of this deed. It also contains the following clause: "Meaning hereby to convey the same premises which were conveyed by Squires, Sherry and Galusha to Ryland Hanger by deed dated December 22, 1881, and recorded in Book 19, page 199, of said Castleton Records, except so much thereof as is situated south of said railroad."

The defendants claimed and offered evidence tending to show that while the west boundary of the land conveyed by the deed of 1881 is therein specified as the "watercourse flowing from the mills," there was at that time a millpond there, which subsequently went out, so...