Newport Hosp. v. Ward, 7617.

• Decision Date: 05 March 1936
• Docket Number: No. 7617.,7617.
• Citation: 183 A. 571
• Parties: NEWPORT HOSPITAL v. WARD.
• Court: Rhode Island Supreme Court

183 A. 571

NEWPORT HOSPITAL

v. WARD.

No. 7617.

Supreme Court of Rhode Island.

March 5, 1936.

Exceptions from Superior Court, Newport County; Charles A. Walsh, Judge.

Action in covenant and assumpsit by the Newport Hospital against Agnes B. Ward, T. T. Defendant's demurrer was sustained, and plaintiff took exceptions.

Exceptions overruled, and case remitted.

William R. Harvey, J. Russell Haire, and Sheffield & Harvey, all of Newport, for plaintiff.

John C. Burke, of Newport, and Harry A. Tuell, of Providence, for defendant.

CAPOTOSTO, Justice.

This is an action in covenant. The case is before us on the plaintiff's exception to a ruling of the superior court sustaining a substantial demurrer to all the counts of the declaration.

An examination of the papers discloses that the action is based upon the alleged breach of the covenants of quiet enjoyment and of general warranty contained in a deed, dated May 19, 1746, from the town of Middletown to Jonathan Easton, which purports to convey Sechewest or second beach, otherwise described as the "commonage," to the grantee therein named. The plaintiff is a successor in title as devisee of John Alfred Hazard.

The declaration is in four counts. The first and second counts are in covenant; the former for breach by the town of the covenant of quiet enjoyment, and the latter for breach of the covenant of general warranty. The third and fourth counts are in assumpsit, and are joined in the declaration by virtue of the provisions of our statute. The third count proceeds on the theory that, as the town has repudiated its deed and has caused it to be declared null and void by this court in the case of Newport Hospital v. Ritchie, 52 R.I. 485, 161 A. 371, it was the duty of the town to return to the plaintiff the consideration, with interest, paid for the deed by Jonathan Easton. The damages claimed in this count are the value of the premises and the plaintiff's expenses in defending its title thereto. The fourth count is based on the doctrine of unjust enrichment, and seeks to recover the consideration paid by Jonathan Easton, with interest from the date of the deed to the present time.

With the exceptions just noted, the allegations of all the four counts in plaintiff's declaration are substantially the same. They allege that the town of Middletown, acting in its corporate capacity through Edward Easton, town clerk, executed the abovementioned deed conveying the premises therein described in fee to Jonathan Easton for the sum of 237 pounds 18 shillings, that Jonathan Easton took possession of said premises, and that, subject to certain rights of the inhabitants of the town, he and his successors in title occupied said premises under said deed without interference until June 28, 1929, when, because of certain acts of the members of the town council which interfered with its use of the premises, the plaintiff brought a bill in equity, entitled Newport Hospital v. Ritchie, supra, to enjoin them from interfering with its use and enjoyment thereof. It then alleges that the said town in its corporate capacity and on its own motion became a party to said cause and filed an answer setting forth that it had no power to convey said premises to Jonathan Easton and that its alleged deed of May 19, 1746, was null and void, and that the final decree in that cause sets forth that "the deed should be and is hereby declared null and void and said town is hereby declared to be the legal owner of said commonage, in trust for the benefit of the inhabitants of said town and the general public." The declaration further alleges that, as a result of this repudiation of its deed by the town, the plaintiff has been evicted from the premises and has been damaged in the manner and to the extent described in the different counts. A certified copy of the deed is attached to and made a part of the declaration.

The defendant demurred to all four counts in the declaration. The grounds of demurrer to each count are minutely and properly set forth. It is sufficient for our purpose to state that all the grounds relied upon by the defendant are based, directly or indirectly, upon the claim (1) that the covenants in the deed of 1746 and the promises, express or implied, that the plaintiff seeks to draw therefrom are not the covenants or promises of the town; (2) that said deed and covenants are ultra vires; and (3) that said deed is null and void by reason of the decree in Newport Hospital v. Ritchie, supra, hereinafter referred to by us as the Ritchie Case. The trial justice sustained the demurrer to each count in the declaration, whereupon the plaintiff brought its exceptions to this court.

The principal issue raised by the pleadings and the exhibit attached to the plaintiff's declaration is the validity of the warranty deed that the plaintiff claims conveyed the premises in question, known either as Sechewest Beach or as Sachuest Beach, from the town' of Middletown to Jonathan Easton in 1746. In determining this question, the form of the deed itself and the decision of the court in the Ritchie Case are important. Notwithstanding the recital in the deed that the conveyance is made pursuant to a vote of the town meeting, the grantor in that deed is not the town of Middletown, but is Edward Easton, who describes himself therein as the town clerk of that municipality; it is not signed by or in behalf of the town, but by "Edward Easton, Town Clerk"; and no seal of the town is affixed thereto, although the deed bears a blank seal opposite the name of the grantor. The testimonium clause reads: "In witness whereof, I, the said Edward Easton, Town Clerk, have hereunto set my hand and seal." The covenants of quiet enjoyment and of general warranty are entered into by Edward Easton "for himself and his successors in his said office of town clerk," and not by the town of Middletown in its corporate capacity. In the covenant of general warranty the grantor warrants to defend against himself, "the said Edward Easton" and his successors in said office, and "against all and every other person and persons belonging to Middletown."

The plaintiff's declaration, which relies upon and incorporates this deed by reference, alleges that in 1746 the town of Middletown entered into certain covenants with Jonathan Easton, the benefits of which the plaintiff now claims as his successor in title. Allegations and conclusions in a declaration cannot prevail against the language of an instrument incorporated therein by reference, especially in the case of an ancient document, if such allegations and conclusions are not warranted by a construction of that instrument in accordance with the law applicable thereto at the time of execution.

In support of its contention that the deed as executed was sufficient to bind the town of Middletown, the plaintiff quotes at some length from 43 C.J. 1350, § 2112, which begins as follows: "By the common law a corporation could 'act and speak only by its common seal.' And the proper form for a municipal deed or lease is in the corporate name, signed by the mayor, and sealed with corporate seal, affixed and attested by the recorder or other proper officer duly authorized. But under modern statutes and modern decisions the rigors of the common law have been abated and much less now satisfies legal requirement." (Italics ours.) It is our intention and purpose to confine ourselves strictly to the circumstances in this case and to determine whether the deed in question was sufficient to bind a municipality under the law in force almost two hundred years ago.

Before the adoption of modern statutes, numerous cases hold that a deed or contract under seal made by an agent does not bind the principal unless it is made in the name of the principal, and that it is not enough for the agent to declare in the instrument that he makes it as the agent for his principal and to add to his signature words expressive of the same thing. This subject was discussed and the authorities reviewed in City of Providence v. Miller, 11 R.I. 272, 23 Am. Rep. 453. In that case the city of Providence brought a bill in equity to enforce specific performance of a contract under seal for the sale of certain land. The contract was between the defendants and Thomas A. Doyle "in behalf of the City of Providence." It was signed by the defendants and Thomas A. Doyle, respectively, in their own names, and sealed with their own seals. In sustaining a demurrer to the bill on the ground that the contract, by the copy annexed to the bill, was not the contract of the city, at page 275 of 11 R.I., 23 Am.Rep. 453, the court says: "The only thing that gives countenance to the claim that the contract is the contract of the city is the expression, 'in behalf of the city of Providence,' which appears nowhere but in the title of the contract. These words indicate that the city is beneficially interested, but they do not make it a party, or entitle it to sue as a party, to the contract."

We appreciate that under certain conditions and irrespective of statute a deed or other sealed instrument may bind the principal however irregular and informal the mode of execution of it by the agent may be. But, to warrant this conclusion, the deed or other sealed instrument must show on its face that it was executed by the principal acting through his agent and not by the agent himself. The form of the testimonium clause is of material assistance in determining this question, especially if it states that the principal has thereto affixed his seal. This very question was decided in the case of Bradstreet v. Baker, 14 R.I. 546, where the plaintiffs sued in covenant for the breach of a contract under seal between the Centennial Ice Company, a copartnership, by J. S. Bradstreet, agent, as party of the first part, and the defendants, as parties of the second part. The stipulations contained in the body of the instrument purport to be stipulations between "the...