Clement v. Bank of Rutland
| Decision Date | 22 April 1889 |
| Citation | 17 A. 717,61 Vt. 298 |
| Parties | P. W. CLEMENT v. THE BANK OF RUTLAND |
| Court | Vermont Supreme Court |
JANUARY TERM, 1889.
This was an action of covenant, counting upon a deed executed by the defendant to the plaintiff. Plea, non est factum, with notice of special matter. Trial by court at September term 1888, Royce, Ch. J., presiding.
Judgment reversed and cause remanded.
J C. Baker and C. A. Prouty, for the plaintiff.
The defendant claims that as the pleadings show that the plaintiff conveyed the premises before this suit was brought, he cannot maintain the action, as he had no interest in the property. But this does not defeat his right to maintain the action on the covenant of seizin, for that covenant, if broken at all, was broken when made, and became and was a non-assignable chose in action, upon which no one can sue but the plaintiff or his personal representative.
If the plaintiff conveyed the land before the covenant of warranty was broken, it may be doubtful whether he can recover on that covenant upon what is disclosed in the declaration; for although the count upon it alleges compensation by the plaintiff to The Herald & Globe Association, it does not yallege that the plaintiff conveyed to the association with covenants binding him to make compensation. He may have conveyed to it by quitclaim deed for aught that appears, in which case he would not be bound to make compensation, and query whether then compensation would avail him.
In respect of the passage of covenants as incident to the assignment of estates, the rule is, that when the assignment is made before breach, and contains no warranty nor other covenant on which the assignor can be made liable, the right of action on covenants made by a prior grantor vests exclusively in the assignee, and cannot be enforced by the assignor, even for the benefit of the assignee; because in such case the assignor can sustain no damage, and a man cannot maintain an action for the recovery of damages that he could not have suffered. Keith v. Day, 15 Vt. 660; Bickford v. Page, 2 Mass. 455; 1 Smith's Lead. Cas. (7th Am. Ed.) 203.
But if the assignor is liable to the assignee, and discharges that liability before suit brought, then he can enforce the covenant, for he thereby, as it were, takes up the covenant for his own benefit. Williams v Wetherbee, 1 Aik. 233; Smith v. Perry, 26 Vt. 279; Withy v. Mumford, 5 Cow. 137; 1 Smith's Lead. Cas. (7th Am. Ed.) 203.
But if the covenant of warranty was broken by an eviction of the plaintiff himself before he conveyed, as seems to be in effect alleged in the count on that covenant, then of course he may maintain an action upon it.
This brings us to the main question in the case, which is one of construction.
It is unnecessary to make an extended statement of the rules that obtain in the construction of deeds. They are numerous, well understood, and of greater or less universality of application. Perhaps as important a rule as any is, that the intention of the grantor, if not unlawful, is to be given effect when it can be ascertained. And again; deeds are to be construed as a whole in the light of the circumstances that attended their execution, and with a view to give every part meaning and effect, which will always be done if possible.
The deed in question, which was given on Dec. 30, 1885, and contains full covenants, first describes the premises conveyed as the grantor's banking-house and lot situated on the east side of Merchants Row in the village of Rutland, "bounded on the north by the land and lot of Frederick Chaffee; on the east and south by the land and lot of Michael Quinn; and on the west by Merchants Row." It then goes on to say, that "for a more particular description of said lot, reference is had to the report and plan as to and of said lot, made to S.W. Rowell, former cashier of said bank, by J. J. R. Randall, dated Nov. 22d, 1878, * * * * which report and plan is hereby given to said Clement;" and that the grantor "conveys all the rights, titles, and interests it has in said banking-house and lot and in the adjoining walls, and no more, and sells and conveys hereby only the real estate in said lot and premises."
It is conceded that the reference made in the deed to said report and plan makes that document as much a part of the deed as though it had been actually copied into it as a part of the description.
It seems that before and at the time of Randall's survey and report, there was a controversy between Quinn and the bank as to the location of the east-and-west line between their lots; and the chief object of that survey was as shown by the report, "to determine the width of the bank lot." As the result of his examination and survey, Randall judged, as shown by the report, that Quinn's north line was...
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