Eddy v. Chase

Decision Date08 January 1886
PartiesEDDY v. CHASE and others.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

J.M. Wood, for defendants.

A.J Jennings and J.M. Morton, for plaintiff.

OPINION

MORTON, C.J.

This is an action brought under Pub.St. c. 136, §§ 26, 27, against the heirs of Samuel Chace, deceased, to recover for a breach of the covenants in a deed of land from said Chace to the plaintiff. At the trial the defendants objected that the declaration did not formally set out that the estate of said Chace had been settled, and that the defendants had received any estate from him; and asked the court to rule that the plaintiff could not maintain his action. This objection should have been taken by demurrer, and it was too late to take it at the trial. Com. v. Dracut, 8 Gray, 455.

In the deed to the plaintiff, two of the boundaries are as follows "Thence southerly, by the highway, to land of William Mitchell's mill privilege; thence southerly, by William Mitchell's land, to the highway." The defendants contested, and asked the court to rule, that the deed of Chace "did not convey the premises free from the mill privilege granted in his deed to Joseph Harper, but the plaintiff was fully notified of every incumbrance by reference 'to the land of William Mitchell's mill privilege' in his deed;" and also, "that it is competent for the jury to say whether, upon the evidence, any warranty against the mill privilege was intended or expressed in the deed." These requests were properly refused. It was the province and duty of the court to construe the deed from Chace to the plaintiff. This deed contains general covenants, that "I am lawfully seized in fee of the aforegranted premises; that they are free from all incumbrances;" and that "I will, and my heirs, executors and administrators shall, warrant and defend the same to the said Hiram B. Eddy, his heirs and assigns, forever, against the lawful claims and demands of all persons." The descriptive part of the deed refers to "land of William Mitchell's mill privilege," merely as a monument or boundary of the land conveyed, and cannot, by any rule of construction, be held to take the mill privilege, or any of the other privileges or rights granted by the deed from Chace to Harper, out of the operation of the general covenants of the deed. The grantor does not convey the land described subject to these rights and privileges. He conveys it free from all incumbrances, and expressly covenants that he will warrant and defend it against the lawful claims...

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