Gill v. Ferrin

• Decision Date: 03 June 1902
• Citation: 71 N.H. 421,52 A. 558
• Parties: GILL v. FERRIN.
• Court: New Hampshire Supreme Court

52 A. 558

71 N.H. 421

GILL

v. FERRIN.

Supreme Court of New Hampshire. Merrimack.

June 3, 1902.

Action by Daniel O. Gill against Mary T. Ferrin. Verdict for plaintiff for nominal damages, and he excepts, and moves that the verdict be set aside and judgment entered in his favor for the amount claimed. Defendant moves that the verdict be set aside and for judgment. Case transferred from the superior court. Verdict set aside, and judgment for defendant.

The defendant and her three children acquired title to the premises in question by descent from the defendant's late husband. On December 26, 1899, the plaintiff and his partner, Loveland, made a written agreement with the defendant and her children to purchase the property for the sum of $8,500, of which $1,000 was paid on the date of the agreement, and the balance was to be paid on or before July 15, 1900. The agreement further provided that the Ferrin heirs should have the privilege of occupying the premises, or a part of them, until July 19, 1900. During the latter part of March, 1900, Gill and Loveland entered into an oral agreement with the defendant and her children that they would pay the taxes assessed for the year 1900 if the Ferrin heirs would give them a deed and possession of the premises on April 2, 1900, instead of on or before July 15th. In accordance with this agreement, on April 2, 1900, the defendant's children released and quitclaimed to the defendant their interest in the land, and thereafter, on the same day, the defendant delivered to Gill and Loveland a warranty deed thereof, and received from them $7,500, the balance of the purchase price. The consideration expressed in the deed was $8,500. After the description occurred the following words: "This conveyance is made subject to the incumbrance of the highway leading from the Long Pond road to the Ferrin farm buildings." Following this clause were the usual covenants of warranty; that against incumbrances being as follows: "That the premises are free and clear from all and every incumbrance whatsoever, except as aforesaid." Possession of the premises was given to Gill and Loveland by the Ferrin heirs in accordance with the oral agreement. The premises were taxed by the city of Concord as of April 1, 1900, to the Ferrin estate, for the sum of $128.80, which amount, with $4.34 interest, the plaintiff paid to prevent a sale of the property for taxes. Prior to payment of the taxes, Loveland bad quitclaimed his interest in the premises to the plaintiff. A verdict was rendered for the plaintiff for nominal damages, and he excepted. Upon the finding of the foregoing facts, the plaintiff moved that the verdict be set aside and judgment be entered in his favor for $133.14, with interest and costs. The defendant moved that the verdict be set aside, and that judgment be entered for her, with costs. The questions as to whether the verdict should be set aside, and, if so, what judgments should be entered, were transferred from the October term, 1901, of the superior court by Stone, J. The plaintiff was. allowed to amend by joining Loveland as a plaintiff.

Matthews & Sawyer, for plaintiff.

Eastman & Hollis and Harry J. Brown, for defendant.

WALKER, J. In Watts v. Welman, 2 N. H. 458, A. conveyed to B. a tract of land in fee and in mortgage, and afterwards, in consideration that C. agreed to pay and discharge the mortgage, conveyed to C. a parcel of the same land, with a covenant that the parcel so conveyed was free of all incumbrances; and it was held that as between A. and C. the mortgage was not to be considered as an incumbrance within the meaning of the covenant. It is there said: "The moment the land was conveyed by the defendant to the plaintiff, the debt due to Jones [the mortgagee] became the debt of the plaintiff, and ought as between him and the defendant to be considered as paid, and as no longer an incumbrance upon the land. The case is in principle the same as if the defendant had conveyed the same parcel to Jones, with a similar covenant, in satisfaction of Jones' debt, and Jones had brought an action on the covenant, and set out his mortgage as a breach of it." The theory of that decision is that the covenant was extinguished, as between A. and C, upon the acceptance of the deed, because justice required that it should be. The debt for which the incumbrance existed had become the debt of the grantee. The grantor owed the grantee no duty either to pay the debt or to remove the incumbrance, for the grantee, upon sufficient consideration, had agreed to perform that duty himself, and to relieve the grantor from all liability on account of it. To say that the grantor intended, in his contract of warranty against incumbrances, to include the mortgage which the grantee had agreed to assume and discbarge, would be to impute to the parties the making of an absurd and unreasonable contract. No sensible reason can be perceived why they should regard the mortgage as an incumbrance within the meaning of their contract. The statement of that proposition in more precise terms would be that the grantor covenanted that the premises conveyed were free and clear of the incumbrance of "a certain mortgage which existed thereon, and against which the grantee agreed to indemnify and protect the grantor. It cannot be inferred, without resorting to an unreasonable assumption, that the parties intended that the gran tor's warranty should cover the mortgage which the grantee was bound to pay and discharge under his agreement with the grantor. As between the parties, the grantor's liability on account of the mortgage was terminated, because such is the inevitable result of their intention. "Language, independent of the subject-matter of the author's general purpose, is usually meaningless and obscure. The Inconvenience, hardship, or absurdity which one construction would lead to is often strong evidence in favor of another or different construction involving no objections of that character, because men in general do not enter freely into contracts which are absurd or frivolous, and therefore the knowledge of the court on that subject is evidence of the intention of the parties. * * * It is the very great improbability that the parties intended" an absurd result "that leads to the conclusion, in the absence of evidence to the contrary, that they had no such intention." Kendall v. Green, 67 N. H. 557, 563, 42 Atl. 178, 180.

The extent and subject-matter of a covenant of warranty in a deed of land is ascertained, as a fact, like the extent and subject-matter of other contracts, from the legal evidence of the intention of the parties. There is no absolute...