Potter v. Taylor

• Citation: 6 Vt. 676
• Parties: THOMAS POTTER v. JAMES B. TAYLOR
• Decision Date: 01 March 1831
• Court: United States State Supreme Court of Vermont

6 Vt. 676

THOMAS POTTER v. JAMES B. TAYLOR

Supreme Court of Vermont, Washington

March, 1831

The plaintiff declared on a covenant against incumbrances contained in a conveyance of real estate, executed by the defendant to the plaintiff, on the 1st day of April, A. D 1828. The defendant pleaded non est factum and general performance, on which issue was joined to the court by agreement of parties.

The deed containing the covenant declared on, together with all the other usual covenants, was read in evidence without objection. The premises were subject to a mortgage executed to one Crane, for securing a note of $ 80 and interest, and another in favor of one Bradford Kinney, given to secure a demand payable in hay; and it was admitted that the former constituted a valid incumbrance when the defendant deeded to the plaintiff; but it was insisted that the latter was excepted from the covenants in the defendant's deed. The exception relied upon was inserted in the deed after the covenants, and was in the following words: " Except the amount of a mortgage held by Bradford Kinney, on which is due about eighteen tons of hay." There was in fact due to Kinney twenty-eight tons of hay, which the plaintiff had been obliged to pay for, and he claimed to recover for the excess above eighteen tons in this action.

After the issuing of the plaintiff's writ, on the 1st day of March, A. D. 1830, and before the service of it, on the 8th to wit, on the 6th day of March, the plaintiff paid to Crane the amount of his mortgage--Crane having instituted a suit against him to enforce payment.

Two questions were made:--1st, Whether the plaintiff was entitled to recover more than nominal damages on account of the mortgage to Crane, inasmuch as he did not pay off that incumbrance until after the commencement of his action.--2d Whether there was any remedy on the covenants in the defendant's deed by reason of the mortgage to Kinney. The county court having ruled in favor of the plaintiff on both points, the case was brought up on exceptions to that decision.

Affirmed.

Smith & Peck, in support of the exceptions.--In respect to the Crane mortgage, the plaintiff can recover only nominal damages. He should have paid off the incumbrance before bringing his suit. Such damages only can be recovered as had accrued at the date of the writ.--4 Pick. 106.--2 Saund. R. 169. Actio non in every case goes to the commencement of the suit, and not to the time of pleading.--3 T. R. 186. The question always is, had the plaintiff a cause of action at the commencement of his suit? The Kinney mortgage is to be regarded as excepted from the operation of the covenant of warranty. The defendant warrants against all claims but those of this mortgagee. But if the exception is from the operation of the covenant against incumbrances, then the whole mortgage is to be excluded, for it is clearly not an exception of part of a mortgage. The words " on which there is due about eighteen tons of hay," are merely descriptive of the mortgage. They are thrown in as the opinion of the grantor as to the sum due, but cannot amount to a covenant that no more is due. Where land is conveyed by metes and bounds, or by lots and numbers according to a public plan or survey, it has been uniformly held that the enumeration of quantity is not of the essence of the contract, and does not amount to a covenant that the premises conveyed contain the number of acres specified. The rule that a deed is to be construed most strongly against the grantor, has been greatly perverted. It only applies where there is some ambiguity arising on the face of the deed.--2 John. R. 37.--1 Aik. 325.--2 Mass. 380--5 Ib. 355--6 Ib. 131.

Merrill & Spalding contra.--The exception in the deed applies to and qualifies the covenant against incumbrances, for this was manifestly the intention of the parties. Words may be transposed to give effect to an intent where that is evident. 1 Sw. Dig. 222-3. The phraseology used shows that the exception was intended to operate as a limitation or qualification of the otherwise general covenant against incumbrances. It is appropriate to such a covenant, but would...