Burbank v. Pillsbury

• Decision Date: 01 July 1869
• Citation: 48 N.H. 475
• Parties: JOHN P. BURBANK v. JOHN PILLSBURY
• Court: New Hampshire Supreme Court

48 N.H. 475

JOHN P. BURBANK v. JOHN PILLSBURY

Supreme Judicial Court of New Hampshire.

July 01, 1869

A clause in a deed poll, to the effect that the grantee (a married woman) agrees for herself and for her heirs and assigns that she and they will forever make and maintain a fence all around the granted premises, will, if the deed is seasonably recorded, create an incumbrance on the granted premises, within the meaning of a covenant against incumbrances in a deed subsequently made by a person claiming under the first grantee.

THIS is an action of covenant broken, founded upon the covenant against incumbrances, the covenant of seisin, the covenant that the defendant had full power and lawful authority to sell and convey in the manner he assumed to do, and the covenant of general warranty, all contained in a warranty deed, executed by the defendant to the plaintiff and dated the seventh day of April, 1868, in common form, purporting to convey to the plaintiff a small tract of land in Haverhill in which deed the land conveyed purported to be conveyed by metes and bounds in fee simple, without any reservation or exception, with all the privileges and appurtenances belonging to the same.

The same matter is relied on as a breach of each of said covenants, and consists of this, viz: That on the 29th day of August, 1838, one Michael Johnston, Jr., was seized and possessed of the premises conveyed, which were surrounded on three sides thereof by other adjoining lands of said Johnston, and on that day said Johnston by his deed of that date conveyed the land in controversy to one Apphia Martin with the following clause in said deed, to wit: “Said Apphia agrees for herself and her heirs and assigns that she and they will forever make and maintain a good, substantial, and lawful fence all around said premises free from all costs and every expense to Michael Johnston, Jr., his heirs and assigns forever.” This deed was seasonably recorded.

There is no record of any conveyance of the premises to any one by said Apphia Martin. But Robert French and others, being heirs of said Apphia Martin, conveyed the premises to the defendant, as such heirs, by full warranty deed in common form, dated May 8th, 1854, and said clause in said Johnston's deed to said Apphia Martin is not inserted and in no manner referred or alluded to in this deed. In the deed from the defendant to the plaintiff, reference is made in the description, to the deed of the said Robert French and others to the defendant, as follows, after naming boundaries and abuttals: “Being all and the same land conveyed to me by Robert French and others by deed recorded in Grafton County Registry of Deeds, liber 226, folio 377”. But no reference is made to said Johnston's deed or to any other conveyance.

The plaintiff relies upon the existence of said clause in said Johnston's deed to said Apphia as a breach of each of said covenants except that of general warranty, and in respect to the covenant of general warranty he relies on that clause, and the fact that said Johnston, by virtue of said clause, claims and exercises the right of turning his animals into his lands adjoining said premises without contributing to the repair of said fences, and the further fact that said animals have strayed from said Johnston's lands upon said premises and damaged the plaintiff's crops.

And it is agreed that, if upon the grounds hereinbefore stated the plaintiff can maintain an action of covenant broken against the defendant upon any of said covenants, judgment shall be rendered for the plaintiff for such sum in damages as the court, at a jury term, shall assess, unless the defendant elect to demur generally to the plaintiff's declaration or shall confess judgment for such amount as he may deem expedient.

It was agreed that the writ and declaration, and copies of the records of any conveyances of the premises in question might be used in the arguments of this cause, the same as if fully set forth in the agreed case.

In the argument it was suggested that Apphia Martin is described in Johnston's deed as a married woman.

Chapman, for plaintiff.

Felton, for defendant.

SMITH J.

If Apphia Martin accepted the deed of Johnston, containing a stipulation that certain services should be performed by her, she thereby (if she had legal capacity to contract), impliedly promised to perform these services, and an action of assumpsit might have been maintained against her for non-performance. “A deed poll, when accepted by the grantee, becomes the mutual act of the parties, and a stipulation on the part of the grantee, though it cannot be declared upon as his deed, yet by force of his acceptance, is a valid contract on his part, by which a right may be reserved or granted, or upon which a suit may be maintained.” This language was used by Shaw, C. J., in Newell v. Hill, 2 Metcalf 180, in reference to a deed poll containing a clause almost precisely similar to that now under consideration; and there are various other cases where the same general principle has been enunciated; Goodwin v. Gilbert, 9 Mass. 510; Minor v. Deland, 19 Pick. 266; Pike v. Brown, 7 Cush. 133; Guild v. Leonard, 18 Pick. 511; Maine v. Cumston, 98 Mass. 317, Bigelow, C. J., p. 319, 320; Atlantic Dock Co. v. Leavitt, 50 Barbour 135; Huff v. Nickerson 27 Maine 106. Indeed, there are authorities which go so far as to maintain that an action of covenant will lie against a party who accepts such a deed. It is unnecessary to consider here the correctness of this position; for if the contract entered into by a grantee who accepts such a deed poll as Johnston's is not a technical “covenant,” it is none the less a binding obligation, the only difference being in the remedy; see 3 Blackstone's Com. 158; and the authorities which hold that an action of covenant will lie are referred to here only by way of showing that the obligation created by the acceptance of such a deed is so nearly akin to a covenant executed by the grantee that it has been seriously contended that there is not even a technical, much less a substantial, difference between them.

From the statements in the agreed case it is fair to presume that the heirs of Apphia Martin claimed under the deed from Johnston to her, and that it is from that source that their title and that of those claiming by conveyances from them is derived. As the deed from Johnston to Apphia Martin was recorded prior to the plaintiff's purchase, we think the plaintiff must be held to have purchased with notice of the stipulations in that deed. The deed was in the chain of title under which plaintiff was purchasing, and due diligence in searching the registry to examme the title would have led him to the record of the deed. The reasons and authorities which induced the decisions in Tripe v. Marcy, 39 N.H. 439, and Stevens v. Morse, 47 N.H. 532, seem applicable to this case.

The next question to be considered is whether the obligation thus entered into by the original grantee is binding on her grantees with notice, or, in other words, whether the burden of the agreement runs with the land, so far as those having notice are concerned.

Is the obligation enforceable at bar against the subsequent purchasers with notice?

The agreement related to the land and contemplated acts to be performed upon the land. The word “assigns” is used, and the acts to be performed are of a “continuing” nature. Probably the amount of the consideration paid for the original conveyance was less than it would have been if this stipulation had not been inserted in the deed.

The stipulation in the deed does not seem to be objectionable as tending to create “a perpetuity” in the legal sense of the term, for there is always a party in esse capable of releasing the promisor from the obligation; see Lord Brougham in Keppel v. Bailey, 2 Myln. & R. 517, cited in notes to Spencer's Case, 1 Smith's Lead. Cases, 5 Am ed., p. 131. Nor do we think it legally objectionable as creating an improper restraint on the free enjoyment or alienation of property. The obligation to maintain the whole of a division fence is no more onerous than several other burdens which the law allows to be imposed on land for the benefit of persons other than the owner. Sir Edward Sugden's observations on kindred topics are very forcible: “Rights of way, for example, show that the law allows one man's land to be perpetually burdened with an easement in favor of another, so that he never can build upon the spot, or do any act which will interfere with the right of way. It is begging the question to say that this and the like cases are exceptions. They are authorized by the law, and the privileges under discussion are of a like nature; so little, indeed, is the supposed doctrine recognized by the law, that the law itself, independently of contract, prevents a man from altering his house, for example, where it would obscure the light which his neighbor has for a given period enjoyed.” Sugden on Vendors, ch. 14, sec. 73. So far as the stipulation in question is concerned, the objection would seem to be disposed of by its inconsistency with the recognized doctrine, “that there may be a valid prescription binding the owner of land to maintain perpetually the fence between him and the adjoining proprietor;” see 13 Vin. Ab. 164 title Fences E. 1; 166 E. 14; Starr v. Rookesby, 1 Salkeld 335; Binney v. Proprietors &c., in Hull, 5 Pick. 503. In Adams v. Van Alstyne, 25 New York 232, p. 235, Denio, J. said: “Nor do I entertain any doubt but that when such a prescription is established, it fastens itself upon the land charged with the burden, and in favor of the tenements benefited by it. It is the usual case of a servitude in lands, * * * * .” If there may be a valid...