Reed v. Hatch

• Decision Date: 11 March 1875
• Citation: 55 N.H. 327
• Parties: Reed v. Hatch.
• Court: New Hampshire Supreme Court

55 N.H. 327

Reed v. Hatch.

Supreme Court of New Hampshire

March 11, 1875

A conveyed to B a piece of land on which a saw-mill was standing, and a right of flowage of A's adjoining land. Following the habendum clause in the deed were the usual covenants in the ordinary form of warranty deeds. These were printed. After the covenants was inserted the following, in writing: "provided said mill is kept for manufacture of lumber, or as long as it is kept for said use." After the last word in the printed covenants was a printed period. The next word, "provided," began with a small p and not with a capital. Held, that the proviso in the deed applied to the grant, and was not restricted to the covenant of warranty.

The mill was destroyed by fire. After the lapse of a year the grantor requested the grantee to erect a new mill on the premises, which the grantee neglected to do. After a reasonable time for such erection, the grantor brought a writ of entry to recover the premises. Held, that the

erection within a reasonable time, and the maintenance of another mill similar to the mill destroyed, would have been a compliance with the terms of the condition or proviso in the deed; but the failure to erect and maintain such mill entitles the grantor to maintain his writ of entry

WRIT OF ENTRY, to recover a tract of land situate in Washington, in said county. Plea, nul disseizin. Trial before SMITH, J.

The plaintiff showed title under a deed from Sally R. Fisher to himself, dated Feb. 15, 1865. He also put in evidence a warranty deed from himself to William Atkins, dated June 9 1870, recorded June 28, 1870, expressed to be in consideration of one hundred dollars. The description of the premises conveyed is as follows: "A certain tract or parcel of land lying in said Washington, with the buildings thereon, and bounded and described as follows, to wit,---commencing at a stake and stones twenty feet below the saw-mill now standing on said land; thence south-east about fourteen rods to a stake and stones; thence easterly about ten rods to a swamp; thence northerly about twelve rods to the mill-pond; thence across said mill-pond to a stake and stones on the west side; thence westerly about twelve rods to a stake and stones; thence southerly about eight rods to the bound first mentioned, containing three acres more or less;---also, the right to flow as much of George D Reed's land as will flow by raising the dam fourteen feet from the bottom of the wheel-pit as it now stands. The said George D. Reed reserves the right to pass and repass to his large meadow across said land; also, the right to maintain and keep in repair a bridge between the mill and the dam."

Following the habendum clause are the usual covenants of warranty, in print, and after the covenants is the following in writing: "provided said mill is kept for manufacture of lumber, or as long as it is kept for said use." After the last word in the printed covenants of warranty, in the office copy of said deed, is a printed period. The next word, "provided," commences with a small p, and not with a capital. It was admitted that the mill was burned in August, 1871; that after the lapse of one year the defendant was notified by the plaintiff to erect a new mill on the premises, which the defendant has not done; and that he had a reasonable time so to do before the commencement of this suit.

The plaintiff testified as follows: "Atkins was a millwright; I wanted a mill there so that I could get my lumber sawed easy; I deeded him the three acres and small water privilege on it (locus in quo). The consideration was, that he should maintain a mill there, and saw my lumber on it at a reasonable price; there was no other consideration for the deed; I received no money; a saw-mill was built there by Atkins; he furnished the labor; I gave him the lumber for the mill and dam, from another piece of land; after the saw-mill was built I had my lumber sawed there, which I gave him credit for, and supposed he charged to me." To the admission of the foregoing testimony the defendant excepted, but the court pro forma admitted the same.

The court pro forma ordered a verdict for the plaintiff for the demanded premises, and the defendant excepted.

The questions arising upon the foregoing case were reserved.

Wait (with whom was Scott), for the defendant

The description of the premises is, "a certain tract or parcel of land," &c., "bounded and described as follows, to wit, commencing at a stake and stones twenty feet below the saw-mill now standing on said land," &c. then follows the habendum in the usual form, making a full stop, marked by a period. Then the several covenants,---"And we, the said George D. Reed and Jennie A. Reed, and our heirs," &c., "do hereby covenant," &c., "that we and our heirs," &c., "shall and will warrant and defend the same to the said William Atkins and his heirs and assigns against the lawful claims and demands of any person or persons whomsoever. provided said mill is kept for manufacture of lumber, or so long as it is kept for said use."

Not only the face of this deed shows it to have been the intention of the parties to confine the operation of this provision respecting the saw-mill to the covenants of warranty, but every recognized rule of interpretation requires it to be so confined. Relative words are to be referred to the next antecedent where the intent does not appear to the contrary. Osgood v. Hutchins, 6 N.H. 374;---see, also, Shaw v. Shaw, 43 N.H.170, and Bank v. Woodward, 5 N.H. 104. This rule is by no means an arbitrary rule of interpretation, but is one founded upon the common and well-known use of language; and the parties are to be taken to mean what their language, according to its ordinary use, imports. It would be contrary, not only to the ordinary use of language, but also in direct opposition to this well settled rule of interpretation, to construe this provision as applying to the terms of the grant, or to any other part of the deed than the covenants of warranty, which are the next antecedent.

The deed is clear in itself; but if the language were doubtful, and susceptible of two meanings, it is to be construed most strongly against the grantor, which will also require these words to be understood as applying to the covenants of warranty only, and not to the terms of the grant. Bacon's Maxims, Regula 3; 2 Kent's Com. *557, note a; Tenny v. Beard, 5 N.H. 58; Cocheco Man. Co. v. Whittier, 10 N.H. 305; Emerson v. White, 29 N.H. 498, BELL, J.; Bullen v. Runnels, 2 N.H. 258, WOODBURY, J., and authorities there cited. The language of the deed in question is, "and that we and our heirs," &c., "shall and will warrant," &c., "provided said mill is kept," &c., "or so long as it is kept for said use:" not, provided a mill is kept, nor as long as such a mill is kept. The words "said" and "it" were evidently intended to apply to the saw-mill mentioned in the description of the premises, where alone it is before mentioned in the deed. Now, even if these words can be regarded as constituting a condition affecting the grant, which they cannot, it is a condition subsequent, and by the burning of

the mill has become impossible to be complied with. If a condition subsequent be possible at the time of making it, and becomes afterwards impossible to be complied with, either by the act of God, or of the law, or of the grantor, the estate of the grantee being once vested is not divested, but becomes absolute. 4 Kent's Com. *129, *130; 2 Black. Com. 156; Co. Lit. 206 a. Had the defendant erected another saw-mill upon the premises in place of the one which was burned, it would have been no compliance with this provision. It would not have been "said mill."

The obvious reference of these words to the mill standing upon the premises at the time, and to no other, not only brings them within this last mentioned rule of law, but renders it clear that the parties intended them to apply only to the covenants of warranty, and not to the grant itself.

We do not think that the mere circumstance that a printed period does not, by the registry, appear to have been erased, can take this deed out of the ordinary rules of construction, when the language itself and the obvious meaning of the parties are both within them. What principle of law or what authority can be invoked in support of the pro forma ruling admitting the parol evidence as shown by the case, we are at a loss to imagine; for, besides the elementary rule that parol evidence is incompetent to explain a written instrument, it is equally well settled that "a deed will take effect according to the meaning of its terms, and not according to the erroneous impression of the parties." Webster v. Atkinson, 4 N.H. 21; Furbush v. Goodwin, 25 N.H. 425, 456;---see, also, upon this point, Haven v. Cram, 1 N.H. 93; Bean v. Thompson, 19 N.H. 290; Harvey v. Mitchell, 31 N.H. 575. This is no latent ambiguity to be explained by extrinsic evidence, but everything is patent upon the face of the deed. Ambiguity at all it is not, but, as we submit, the language of the deed can be construed no otherwise than as above suggested. Burke (with whom was Bowers), for the plaintiff

I. The parol testimony of the plaintiff, to show the real and true consideration of the deed from him to William Atkins, under whom the defendant claims, was proper. It was not offered for the purpose of defeating the conveyance; and for every other purpose it was admissible. Morse v. Shattuck, 4 N.H. 229; Pritchard v. Brown, 4 N.H. 397; Buffum v. Green, 5 N.H. 82; Nutting v. Herbert, 35 N.H. 120; Pomeroy v. Bailey, 43 N.H. 118.

In consulting a description of property granted or devised in a deed or will, the facts of the case are to be first ascertained,...