Bragdon v. Blaisdell

• Decision Date: 31 January 1898
• Citation: 39 A. 1036,91 Me. 326
• Parties: BRAGDON v. BLAISDELL.
• Court: Maine Supreme Court

39 A. 1036

91 Me. 326

BRAGDON

v. BLAISDELL.

Supreme Judicial Court of Maine.

Jan. 31, 1898.

(Official.)

Action by Theodore Bragdon against John D. Biaisdell. Judgment for defendant.

H. E. Hamlin and H. Boynton, for plaintiff.

A. W. King and L. B. Deasy, for defendant.

HASKELL, J. The plaintiff and defendant were each the owners of separate wharves, and the defendant was the owner of a quarry. The defendant conveyed the quarry to the plaintiff by quitclaim deed containing the clause:

"It is also agreed, and made a part of the condition and consideration of this deed, that all stone taken from the above-described lot shall be shipped from said Bragdon's wharf and landing, except that all stone which for any reason cannot be shipped as aforesaid the same shall be shipped over J. D. Blaisdell's wharf, and no other."

At the same time the plaintiff conveyed one undivided half of the quarry, by quitclaim deed, to defendant, containing the clause above quoted. There after wards partition of the quarry was had, to be held by the plaintiff and defendant in severalty; and defendant, by himself and lessees, proceeded to ship stone from his part of the quarry, so held by him in severalty, from his own wharf, when they might have been shipped from plaintiff's wharf, who sues to recover damages therefor, as a breach of defendant's covenant before mentioned.

The action is, covenant broken. Plaintiff cannot sue on the covenant in his deed to defendant, because he did not sign and seal the deed. The remedy, if any there be, is assumpsit, and not covenant. Baldwin v. Emery, 89 Me. 496, 36 Atl. 994; Maine v. Cumston, 98 Mass. 217; Locke v. Homer, 131 Mass. 93. Nor is it plain how plaintiff can maintain his action on the covenant in defendant's deed to him, for want of a breach thereof. By that deed the plaintiff took the whole title to the quarry, and he might deliver the stone upon his own wharf as he pleased. Any covenant that he might do so would seem to have been unnecessary and inoperative, and become merged in his fee.

But assuming that both deeds were contemporaneous, and became effectual as an indenture, so that the covenants were mutual, and each party was bound to the other thereby, what was their purpose, and what is their scope and effect? Did they attach to the land either as a condition subsequent or covenant real that ran with it? It cannot be both, and it can hardly be held a condition.

The supposed covenant recites: "It is also agreed, and made a part of the condition and consideration of this deed," that stone from the quarry shall be shipped from plaintiff's wharf, when feasible. When considered with the whole transaction apparent from the deeds themselves, they fairly negative any such intention of the parties, and that intention must govern. Bray v. Hussey, 83 Me. 329, 22 Atl. 220. The strongest words of condition will not work a forfeiture of the estate, unless they were so intended to operate. The absence of a clause for reentry may signify that no condition was intended, when its presence may make such intent plain. Post v. Weil, 115 N. Y. 361, 22 N. E. 145; Avery v. Railroad Co., 106 N. Y. 142, 12 N. E. 619; Clement v. Burtis, 121 N. Y. 708, 24 N. E. 1013; Countryman v. Deck, 13 Abb. N. C. 110; Hoyt v. Kimball, 49 N. H. 322; City Mission v. Appleton, 117 Mass. 326; Stanley v. Colt, 5 Wall. 119.

Nor does a consideration named as a condition always imply one. Laberee v. Carleton, 53 Me. 211; Ayer v. Emery, 14 Allen, 67; Martin v. Martin, 131 Mass. 547; Morrill v. Railway Co., 96 Mo. 174, 9 S. W. 657; Rainey v. Chambers, 56 Tex. 17; Risley v. McNiece, 71 Ind. 434; Portland v. Terwilliger, 16 Or. 465. 19 Pac. 90.

If the words raise a doubt whether a condition or covenant be meant, they are always to be construed as a covenant, Jones, Real Prop. § 635, and numerous cases cited. Moreover, if the clause, which is the same in both deeds, were considered a condition, it would apply to the whole quarry. The supposed condition does not attach to the land. For illustration, see Jewell v. Lee, 14 Allen, 145. A future grantee would hold the land free of it. No other reasonable construction can be given to it. It is not for the benefit of, and in aid of, a title, but, if anything, of a nature that attaches to the soil,—a servitude or incumbrance upon it; a fee on condition that any future conveyance of the title would become subject to. It does not purport to be an incumbrance,—a claim upon the land,— nor does it subject the land to any easement, servitude, or right against the owner. It is the personal agreement of tenants in common to ship stone quarried from the common land at a particular wharf.

What did the parties mean by the clumsy method taken to serve their respective interests? Plaintiff had a wharf, and defendant had a wharf and quarry. For some reason, he wanted plaintiff to become half owner in the quarry, and plaintiff wanted the first chance of the business of the quarry for his wharf. To accomplish that result, deeds were made, containing an agreement for the purpose. Clearly, the...