Olcott v. Southworth, 474.

• Decision Date: 05 January 1949
• Docket Number: No. 474.,474.
• Citation: 63 A.2d 189
• Parties: OLCOTT v. SOUTHWORTH et al.
• Court: Vermont Supreme Court

63 A.2d 189

OLCOTT

v.SOUTHWORTH et al.

No. 474.

Supreme Court of Vermont.

Jan. 5, 1949.

Exceptions from Chancery Court, Essex County; Stephen S. Cushing, Chancellor.

Action at law by Clarence F. Olcott against Richard N. Southworth and Ellen H. Southworth for breach of covenant in a deed. The action was transferred to court of chancery on defendants' motion, wherein they filed a cross-bill praying for reformation. To review a decree of dismissal, plaintiff brings exception.

Decree reversed, cause remanded and defendants' cross-bill dismissed.

John A. Swainbank and Sterry R. Waterman, both of St. Johnsbury, for plaintiff.

Arthur L. Graves and Frederick G. Mehlman, both of St. Johnsbury, for defendants.

Before MOULTON, C. J., and BUTTLES, JEFFORDS and CLEARY, JJ., and ADAMS, Supr. J.

BUTTLES, Justice.

This cause was originally an action at law brought by the plaintiff to recover damages for the breach of a covenant against encumbrances contained in the deed of a farm executed and delivered to him by the defendants. On the defendants' motion it was transferred to the Court of Chancery in order to enable them to present an equitable defense not available to them at law. They filed an answer in the nature of a cross bill praying for reformation of the deed on the ground that the incumbrance, which was a right to take water from a spring upon the premises and to make necessary repairs to the aqueduct leading from it, was omitted from the deed, and not excepted from the covenant, by the mutual mistake of the parties. Subsequently they amended their cross bill by alleging, as an additional defense, that the covenant was not broken.

After hearing and filing written findings of fact the chancellor entered a decree dismissing the plaintiff's bill of complaint, with costs. The plaintiff excepted to the decree, which presents the question whether the decree is warranted by the pleadings and supported by the facts as found. Burlington Bldg. & Loan Assoc. v. Cummings, 111 Vt. 447, 452, 17 A.2d 319; Roberge v. Town of North Troy, 105 Vt. 134, 143, 163 A. 770; Kennedy v. Robinson, 104 Vt. 374, 379, 160 A. 170.

According to the findings, the premises in question were conveyed on October 11, 1870 by the then owners to Emmons Stockwell, by warranty deed containing the following: ‘Excepting one-half of the spring of water now running to said premises, meaning to except and reserve the one-half that runs to Widow Irene Richardson's premises with the right to repair the said aqueduct when necessary.’ Although the foregoing language appears in a decree of foreclosure which became final in 1878, none of the nine subsequent conveyances of the property up to and including the deed from the defendants to the plaintiff, dated November 13, 1945, contain any mention of a water right, and in each of them the property is described by reference to the prior deeds and the records thereof. At the time of the execution and delivery of the deed the defendant Richard Southworth knew of the existence of the water right but made no mention of it and the plaintiff was not aware of it until about a month after he acquired title. While the cause has been pending in court the plaintiff has sold the property subject to the water right.

The mutual mistake relied upon as a ground for granting equitable relief by way of reformation of the deed is claimed to consist in the mistake of the attorney who prepared the deed and had previously searched the title as far back as a certain conveyance in 1899, and therefore, having thereby obtained no knowledge of the easement, omitted any reference to it in the instrument.

A mutual mistake, in equity, is one common to all the parties to the written instrument, and a mistake of a scrivener acting for all of them is mutual on their part. Ward v. Lyman, 108 Vt. 464, 470, 188 A. 892, and cases cited. But the oversight of a scrivener cannot be regarded as the mutual mistake of the parties, where, as in this case, a grantor knows of the existence of an easement of which the grantee is ignorant and does not communicate this fact either to the scrivener or to the grantee, but permits the deed to be drawn with a covenant against incumbrances and executes and delivers the same. Under such circumstances he cannot escape liability under his covenant on the ground of a mutual mistake. See Pennock v. Goodrich, 104 Vt. 134, 140, 157 A. 922.

The defendants contend that there was no breach of the covenant against incumbrances, because all that the deed conveyed was what they had received from their grantor, which, following the references to previous deeds and their records for a description of the property, was the real estate subject to the water right as originally conveyed to Emmons Stockwell in 1870. Reliance is placed upon Chapman v. Longworth, 71 Vt. 228, 230, 44 A. 352, where the only description in the deed there in question was that the land conveyed was the whole of that which the grantor had obtained from his predecessor in title, and the same was true of a series of prior deeds until one was found which particularly bounded and described the property so that there was no question as to its identity. It was held that this description must be read into the conveyance in issue.

There are many other decisions applying the doctrine of incorporation of description by reference, although they all refer specifically to the next prior deed, or to a survey. It is enough to say, however, that in every instance, including Chapman v. Longworth, the question concerned only the identity, location, or extent of the property and no issue as to an incumbrance thereon was before the Court. The principle does not apply to the present situation.

The water right with the attendant right to enter upon the land for the purpose of repairing the aqueduct, was an incumbrance within the meaning of that term-that is, a ‘right to, or interest in, land which may subsist in third persons, to the diminution of the value of the estate of the tenant, but consistently with the passing of the fee.’ Bouvier Law Dictionary, Rawle's 3d Rev., title Incumbrance, p. 1530; Clark v. Glidden, 60 Vt. 702, 705-706, 15 A. 358; Butler v. Gale, 27 Vt. 739, 744. It was an easement, created as easements may be when for the benefit of a third person, by way of exception. Nelson v. Bacon, 113 Vt. 161, 170, 32 A.2d 140.

A covenant is ‘an agreement between two or more persons, entered into by deed, whereby one of the parties...