Edmund M. Pennock Et Ux. v. Clair D. Goodrich Et Ux

• Decision Date: 06 January 1932
• Citation: 157 A. 922,104 Vt. 134
• Parties: EDMUND M. PENNOCK ET UX. v. CLAIR D. GOODRICH ET UX
• Court: Vermont Supreme Court

157 A. 922

104 Vt. 134

EDMUND M. PENNOCK ET UX. v. CLAIR D. GOODRICH ET UX

Supreme Court of Vermont

January 6, 1932

Special Term at Rutland, November, 1931.

Vendor and Purchaser---Sufficiency of Evidence To Support Finding That Grantees Were Not Chargeable with Notice of Right of Way---Effect of Record of Unacknowledged Instrument as to Notice---Way of Necessity---Implied Reservation of Way of Necessity---Covenants---Implied Reservation of way Not Available as Defense to Breach of Covenant Against Encumbrances.

1. In suit to enjoin further prosecution of action of covenant broken, findings that grantees in deed were not charged with notice of way of necessity or of grant of way over granted premises, held supported by evidence.

2. Record of unacknowledged instrument, not constituting deed or other conveyance of land or estate therein within meaning of G. L. 2739, 2743, but being merely executory agreement to convey land at some future time, with right of way over other land, held not constructive notice of existence of such right of way to grantees in deed of such other land.

3. Where, at time of deeding certain farm, lot then owned by grantors who were under executory agreement to convey it was landlocked, way of necessity existed over such farm to such lot.

4. In such situation, where deed of servient estate contained no express reservation of way of necessity, reservation thereof would be implied.

5. Way of necessity may give rise to an implied reservation as well as to an implied grant.

6. Owner of land over which there is way of necessity, who conveys it free from encumbrances to one who has no knowledge of such way, cannot escape liability under his covenants against encumbrances on ground that there was implied reservations of such way in his deed.

APPEAL IN CHANCERY. This is a suit to enjoin defendants from further prosecution of an action of covenant broken against the plaintiffs, pending in Rutland county court. The case was previously before the Supreme Court, at which time it was reversed pro forma with leave to plaintiffs to apply for permission to so amend their bill as to enable them to have their rights, if any, determined on the basis of a right of way of necessity, or by an implied covenant in their deed reserving such right of way. See 102 Vt. 68, 146 A. 1. Amended bill and answer was filed. Heard on the pleadings and findings of fact made by the chancellor at the September Term, 1930, Rutland County, Buttles, Chancellor. Decree dissolving temporary injunction and dismissing bill with costs to defendant. The plaintiffs excepted.

Decree dissolving the temporary injunction and dismissing the bill with costs to defendants affirmed, and cause remanded.

Novak Bloomer & Spero for the plaintiffs.

Jones & Jones and Charles L. Howe for the defendants.

Present POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM. JJ.

OPINION

SLACK

The plaintiffs seek to enjoin further prosecution of an action of covenant broken, pending against them in Rutland county court, wherein these defendants are plaintiffs.

The case has been here before. See 102 Vt. 68, 146 A. 1. Since the material facts then appearing are there stated, it is enough to say that plaintiffs conveyed to defendants the Capron farm, so-called, in the town of Rutland, by warranty deed in the usual form. It turned out that at the time of such conveyance there was a right of way across such farm to what is known as the Howard lot, which right was later confirmed by a decree of the court of chancery within and for the county of Rutland, in a suit brought by one Peryea against these plaintiffs and these defendants. Thereafter these defendants brought the action for covenant broken above referred to. When the instant case was formerly here, the plaintiffs contended that the decree in the Peryea Case was conclusive in their favor as against any liability by them to the defendants in the latter's action at law by reason of there being no reservation of said right of way in their deed to the defendants. It was held, however, that such question was not raised by the pleadings; and the decree, which was for the defendants, was reversed pro forma, and the cause was remanded with leave to plaintiffs to apply for permission to so amend their bill as to enable them to have their rights determined if any they had against the defendants, on the basis of a right of way by necessity, or by an implied covenant in their deed to the defendants reserving said right of way over said farm for the benefit of the Howard lot.

After remand the bill was amended by alleging, in substance, that prior to their deed to the defendants the plaintiffs entered into a written agreement with Peryea under the terms of which they agreed to sell, and he agreed to buy, the Howard lot that such agreement also provided that Peryea was to have a right of way to said lot across the Capron farm; that this agreement was duly recorded in the town of Rutland before the conveyance to the defendants; that Peryea had a way of necessity across the Capron farm; that all these facts were known to the defendants when they took their deed, and that there was an implied covenant in such deed reserving a right of way over said farm for the benefit of the Howard lot. The answer denied knowledge by defendants of the agreement between the plaintiffs and Peryea respecting such right of way, denied that he had a way of necessity across their farm to the Howard lot, and denied that there was an implied covenant in the deed from plaintiffs to them reserving a right of way across the premises thereby conveyed to the Howard lot.

A hearing was had on the merits by a chancellor, who found and stated the facts; and a decree was entered for defendants from which plaintiffs appealed. The plaintiffs also filed exceptions to certain of the findings and to the refusal of the court to find in accordance with certain requests.

As preliminary to the findings the chancellor stated, in substance, that he understood that the issues before him had to do only with the rights of the plaintiffs, if any, against the defendants on the basis of a right of way by necessity or by an implied covenant in the deed from plaintiffs to defendants reserving a right of way over the Capron farm for the benefit of the Howard lot. This was excepted to on the ground that the issues were not thus restricted, either by the pleadings or the evidence. Treating this statement as subject to exception, we think the chancellor correctly outlined the issues involved. Moreover, the record shows that all issues that could possibly affect plaintiffs' rights were heard and determined.

It is found that plaintiffs and Peryea entered into the agreement set forth in the amended bill June 18, 1918; that the same was duly recorded, and that Peryea went into possession of the Howard lot. It is found that ...