Eaton v. Clarke
| Decision Date | 06 March 1923 |
| Docket Number | No. 1864.,1864. |
| Citation | 120 A. 433 |
| Parties | EATON v. CLARKE. |
| Court | New Hampshire Supreme Court |
Exceptions from Superior Court, Sullivan County; Kivel, Judge.
Covenant by Lyman B. Eaton against Lizzie H. Clarke. Verdict for plaintiff set aside, and judgment ordered for defendant, and plaintiff excepts. Judgment rendered for defendant.
Covenant. The suit is brought to cover expenses incurred in defending the petition proceedings involved in Warner v. Eaton, 78 N. H. 515, 102 Atl. 535. Trial by the court. The claim for 7/32 of the land conveyed to Eaton was presented by him to the commissioner upon the estate of Mrs. Harris, and was allowed. The estate is solvent. It was admitted at the argument that the sum so allowed was received from the estate and was paid to Warner in satisfaction of his claim. The balance of the common property was sold by order of court made in the partition proceedings, and the proceeds have not been distributed. There was a verdict for the plaintiff, and the case was transferred to this court upon exception thereto. The case was discharged because the facts did not sufficiently appear (Eaton v. Clark, post, 119 Atl. 924); and, upon further hearing, the superior court set aside the verdict, ordered judgment for the defendant, and allowed a bill of exceptions, at the September term, 1922.
Hurd & Kinney and H. N. Hurd, all of Claremont, for plaintiff.
Ira G. Colby, of Claremont, for defendant.
The plaintiff's claim is that he has been put to expense by a breach of warranty of title to land conveyed to him by the defendant's ancestor. Various objections to a recovery are urged, but it is not necessary to consider all of them. The warranty was against lawful claims only. Expenses incurred in defending against an unfounded claim cannot be recovered from those bound by the warranty. The fact that there is an apparent cloud upon the title is not enough. Its validity must be shown to establish a liability of the warrantor. Winnipiseogee Paper Co. v. Marsh, 64 N. H. 531, 15 Atl. 19. In the present instance the adverse claim was held to be unfounded, unless it should be made to appear that it was necessary to take a part of the granted premises to make up the share of the part owner of the larger tract which included the land conveyed to Eaton. Warner v. Eaton, 78 N. H. 515, 102 Atl. 535.
The proceedings which have been taken are somewhat unusual, but it is not necessary to consider them in all their details. They apparently show that there was ample opportunity to satisfy all the claimant Warner's rights out of the balance of the property. They certainly do not show that the contrary is the fact, and, in the absence of that situation, there is no liability here. The present plaintiff never notified his grantor or her successors to defend the partition proceedings, but elected to conduct that litigation himself. Having taken that course, he cannot recover his expenditures, except upon proof that the claim defended against was valid.
This conclusion puts no unreasonable burden upon the plaintiff. It was not necessary for him to assume the duty of deciding upon the validity of an adverse claim when it was presented. If he had then notified those who are bound to make the warranty good that such a claim was being prosecuted, and had asked them to assume the defense because of their liability upon the warranty, he would have been relieved from all further duty to them in the premises. Thrasher v. Haines, 2 N. H. 443; Lebanon v. Mead, 64 N. H. 8, 4 Atl. 392. In the absence of fraud or collusion, they would then have been bound by any judgment rendered in that proceeding. Littleton v. Richardson, 34 N. H. 179, 187, 66 Am. Dec. 759; Chandler v. Brown, 59 N. H. 370. But as the plaintiff elected to conduct the defense to the partition proceedings, he has no remedy over when the event shows that the adverse claim was unfounded. The peril of an ultimate liability resulting from permitting a false claim to go by default could have been transferred to those liable upon the warranty (Jackson v. Marsh, 5 Wend. [N. Y.] 44), but only by a seasonable notice to defend against it.
It was also claimed in argument that Eaton...
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