Dyer v. Scott

• Decision Date: 19 October 1925
• Citation: 253 Mass. 430,149 N.E. 146
• Parties: DYER v. SCOTT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 430

149 N.E. 146

DYER

v.SCOTT.

Supreme Judicial Court of Massachusetts, Franklin.

Oct. 19, 1925.

Exceptions from Superior Court, Franklin County; Frederic B. Greenhalge, Judge.

Action of contract by Edwin W. F. Dyer against Wilbur T. Scott for breach of covenant against incumbrances.Verdict for plaintiff in amount less than prayed for, and he excepts.Exceptions sustained.

Homer Sherman, of Charlemont, for plaintiff.

A. S. McLaud and P. H. Ball, both of Greenfield, for defendant.

SANDERSON, J.

This is an action of contract for breach of covenant of warranty against an incumbrance in a deed from the defendant to the plaintiff's grantor, brought under G. L. c. 184, § 22, which provides that;

‘Whoever conveys real property by a deed or mortgage which contains a covenant that it is free from all encumbrances shall, if it appears by a public record that an actual or apparent encumbrance, known or unknown to him, exists thereon, be liable in an action of contract to the grantee, his heirs, executors, administrators, successors or assigns, for all damages sustained in removing the same.’

One of the breaches relied on is that there was no deed of record conveying a part of the property to the defendant's grantor, The plaintiff sought to recover damages for trouble and expense in finding and recording a paper purporting to be a conveyance of this property from an executor who had no power under a will or from the probate court to make a sale, and it further appeared that there was no seal on the document.There was evidence sufficient to justify the finding that the defendant through his own possession and that of his predecessors in title had gained title to the property by prescription, and the jury must have so found because, in reply to the question by the court, ‘Was there a breach of warranty in respect of the conveyance * * *?’they answered, ‘No.’Upon this state of facts the plaintiff cannot be said to have suffered damage in removing an incumbrance actual or apparent.The act was not intended to require a grantor who can show a good title by adverse possession to pay his grantee or assigns the expense incurred in making a good title of record.The word has reference to something that incumbers or burdens a legal title.Prescott v. Trueman, 4 Mass. 628.The exception relating to this matter must be overruled.

Another breach relied on by the plaintiff is that in the defendant's chain of title there were owners whose heirs made the conveyance but upon whose estates administration had never been taken out.The plaintiff incurred expense in causing administrators of these estates to be appointed.In the deed from the heirs reference was made to the source of the grantor's title.The court ruled in substance that an unsettled estate is an incumbrance which does not appear by a public record because it does not appear of record in the registry of deeds.In Carter v....