Safford v. Annis
| Decision Date | 01 July 1830 |
| Parties | SAFFORD v. ANNIS |
| Court | Maine Supreme Court |
THIS was an action of covenant broken, on a sealed agreement dated Nov. 9, 1822, in which the tenant, reciting that he had sold to the plaintiff all the growing timber on a certain lot of land, covenanted that the plaintiff should " have seven years to get the same off in, without being subject to an action of trespass."
It appeared at the trial before the Chief Justice, that the tenant, on the 4th day of June, 1825, sold and conveyed the land in fee to a third person, without reserving the timber or giving the grantee any notice of the plaintiff's title to it; and that it passed in the same manner through several mesne conveyances, till Sept. 29, 1828, when it was again conveyed to the tenant.
It appeared further, that the plaintiff continued, for a long period, to cut and carry off the timber, at his pleasure; and that he was never forbidden so to do, till after the commencement of this action; which was prior to the last conveyance to the defendant; when the person who then owned the land forbade the plaintiff's entry, and threatened him with a suit if he should persist in attempting to take away the timber.
Upon this evidence the Chief Justice ordered a nonsuit, subject to the opinion of the court, upon the question whether the action was maintainable.
Judgment for the defendant.
J Thayer, for the plaintiff, argued that the sale of the land without any reservation of leave for the plaintiff to enter and remove the trees, was a breach of the contract, as it put it out of his power to obtain them without committing a trespass. And his remedy was perfect as soon as the defendant conveyed the land. He was not obliged to wait till he was prosecuted; for in the mean time the defendant might die, or become insolvent. Newcomb v. Bracket, 16 Mass. 161; Webster v. Coffin, 14 Mass. 196.
C. Porter, for the defendant, cited Cook v. Stearns, 11 Mass. 537; Clapp v. Draper, 4 Mass. 266; Gardiner Manuf. Co. v. Heald, 5 Greenl. 386.
MELLEN, C. J. delivered the opinion of the Court in Cumberland, at the the adjournment of May term, in August following.
We do not deem it of importance to decide whether the instrument declared on amounts to a grant, a lease, or a license; the covenant it contains, in connection with the facts reported is all which now requires examination. The language of this covenant respecting the timber sold, is, that " the said Safford is to have seven years to get the same off in, without being subject to an action of...
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