Catlin v. Hurlburt

• Decision Date: 01 January 1831
• Citation: 3 Vt. 403
• Parties: MOSES CATLIN v. DANIEL HURLBURT
• Court: Vermont Supreme Court

3 Vt. 403

MOSES CATLIN v. DANIEL HURLBURT

Supreme Court of Vermont, Chittenden

January, 1831

[Syllabus Material] [Syllabus Material]

This was an action of covenant, brought upon the covenants in a deed given by the defendant and one Benjamin Boardman to the plaintiff. The words of the covenant declared upon were " that the said Hurlburt and Boardman, at the time, & c., were well seized of the premises in fee simple, and had good right to bargain and sell the same," & c. The defendant pleaded, 1st. That he and Boardman were well seized, & c. 2d. That the defendant alone was well seized, & c. The issues were joined to the jury. The defendant showed a deed of warranty from the plaintiff to one Lynde Catlin of the same premises. The defendant also attempted to show a charter-title in himself and Boardman, but wholly failed. There was a verdict for the plaintiff for the consideration money and interest, and exceptions allowed, on which the action was removed to this Court.

Bailey & Marsh, for the defendant.--1. The signification of the word " seizin" is limited to possession, and seizin or possession may be actual or constructive. In the latter case it is called seizin in law; in the former, seizin in deed. If there be actual possession, whether tortious or lawful, it matters not, that is a good seizin in deed. He who has an hour's actual possession, quietly taken, has a seizin de droit et de claime.--Perkins, 457, 458. Seizin in law is colour of title, whether by purchase or inheritance, not perfected by possession. There are many cases of good seizin in law without title or possession. If the defendant was seizin either in law or deed, it is sufficient, though it might be by defeasible title; for the covenant is general, well seized, without saying how. A tortious seizin in deed is a good seizin to satisfy this covenant.--Bearce v. Jackson, 4 Mass. 408; Twambly v. Henley, do. 441; Prescott v. Trueman, do. 627; Marston v. Hobbs, 2 Mass. 433; Chapel v. Bull, 17 Mass. 213. For similar reasons, a claim, accompanied with colour of title, which could at any moment be converted into an actual seizin, must be a sufficient seizin in law to satisfy this covenant, at least, when, as in the present case, the grantee does in fact, acquire a perfect seizin in deed under, and by virtue of, the conveyance. It cannot, therefore, be said that nothing passed by the deed; for it was by virtue of the deed that plaintiff acquired his seizin in fact; and he having received this benefit at our hands, ought not to be permitted to say, even in an action on this covenant, that nothing passed by the deed. We have thus far treated the case on common law principles; but a reference to the statute will make the point still clearer. By the 3d section of the act regulating conveyances, (Stat.p.167,)livery of seizin is dispensed with, and it is provided, that the recording of a deed, properly executed and acknowledged, shall be sufficient to pass the title. Now if the deed to the grantors, had been accompanied with livery of seizin, they would have had a good seizin in deed, within the meaning of this covenant. But the deed to the grantors was accompanied with that which by statute is equivalent to livery of seizin, viz. recording. Consequently, as the grantors claimed under a well executed deed, and as neither the deed to them, nor their deed to the plaintiff, was void by reason of adverse possession, nor for any other cause, and was effectual to give actual seizin, it is a satisfaction of the covenant. It may, therefore, be safely contended, that the words, " well seized," do not import a covenant of title.

2. Whatever may be the opinion of the Court on the first point, it is clear, that if plaintiff recovers he can recover only nominal damages. No actual damage is shown. The loss of the land, and, consequently, of the consideration paid, is not a damage necessarily resulting, in legal contemplation, from the want of title in the covenantor; for, non constat, that the grantee's possession will ever be disturbed. The actual damage shown in evidence must be the rule of recovery. The grantee may, at any time, entitle himself to recover damages by purchasing in the outstanding title, which is in the nature of an incumbrance; but till he has done so, or has been evicted, he has, in contemplation of law, sustained no damage, and shall recover nominal damages only.--Prescott v. Trueman, 4 Mass. 627; Delavergne v. Norris, 7 Johns. Rep. 358; Wyman v. Ballard, 12 Mass. 304; De Forest v. Leete, 16 Johns. Rep. 122; Stanard v. Eldridge, do. 254. If a grantee can recover more than nominal damages in such a covenant as this, it is on the ground of the probable contingency of an eviction. In the present case Moses Catlin, having disposed of his whole interest in the land, is no longer liable to eviction, or any other direct damage, and the contingency can never happen as to him. His right, therefore, to damages on this covenant cannot be any thing more than nominal, unless it is because he is liable over to Lynde Catlin on the same covenant in his deed. But the case shows he never can be liable to Lynde Catlin on the covenant of seizin, because, before the conveyance to him, he had, under one deed, a good seizin in fact, and he and none other, had good right to convey; and their seizin has been kept good by various and continued acts of ownership, up to the commencement of the suit. It would be great injustice for plaintiff to recover back the consideration money paid, and yet retain that received by him of his grantee. Upon a breach of the covenant of warranty, Lynde Catlin might recover full damages against the defendant; and a recovery in this action would be good, neither as a bar, nor in mitigation of damages; and so the defendant would be compelled to pay double damages for a breach of the same covenant.--Wyman v. Ballard, 12 Mass. 304.

3. But if the Court should be against us on this ground, also, there is no good reason why the plaintiff should not account for the timber cut from the land. Having purchased it of us, he is, for this purpose at least, estopped to deny our title; and it not appearing that he has been obliged to account for it else where, he ought to allow it to us.

C. Adams, for the plaintiff.1. The covenant in this case was broken at the execution of the deed; and, therefore, the right of action is in the plaintiff, and not in Lynde Catlin. The doctrine has long been established, that the covenant of seizin is a personal covenant--that it does not run with the land; but the suit lies in the name of the original party.--Williams v. Wetherbee, 1 Aik. 238; Garfield v. Williams, 2 Vt. 327; 4 Kent's Com. 459.

2. There is nothing in this case, to take it out of the general rule. It appearing, that defendant having no title to the lands, plaintiff's entering on them, was tortious, and by cutting timber, he became a trespasser, for which he is responsible to the true owner of the land. In the case of Garfield v. Williams, nominal damages were given; but that is a peculiar case. The plaintiff there had continued upon the land, until all right of action against him was gone. His title had become perfect. He could not be made responsible either for the original entry or for any subsequent act. For whose benefit, then, should the title thus acquired be? Undoubtedly for...