Taylor v. Holter

• Decision Date: 31 August 1872
• Citation: 1 Mont. 688
• Parties: TAYLOR et al., appellants, v. HOLTER et al., respondents.
• Court: Montana Supreme Court

1 Mont. 688

TAYLOR et al., appellants,

v.HOLTER et al., respondents.

Supreme Court of the Territory of Montana.

August Term, 1872.

Appeal from the Third District, Lewis and Clarke County.

THE court, WADE, J., granted a nonsuit in this case. The facts are stated in the opinion.

E. W. & J. K. TOOLE and CHUMASERO & CHADWICK, for appellants.

Appellants should have been permitted to introduce their testimony to explain and interpret the description in the deed of respondents. Prominent landmarks are controlling points as to description. In this case the monuments are fixed and certain, and the actual possession of the identical property was delivered by respondents. Nourse v. Lloyd, 1 Penn. 229;Frost v. Spaulding, 19 Pick. 445;Moss v. Shear, 30 Cal. 479;Waterman v. Johnson, 13 Pick. 261;Owen v. Bartholomew, 9 Id. 520;Donnell v. Humphreys, 1 Mont. 514; Jackson v. Loomis, 18 Johns. 81;Reamer v. Nesmith, 34 Cal. 624;Vance v. Fore, 24 Id. 446;Irwin v. United States, 16 How. (U. S.) 522.

The deed of respondents is the same as that of bargain and sale. The grantors intended to convey the estate without any limitation or reservation. The deed supports the covenant of warranty attached to it. The warranty would be without meaning unless the deed is construed as claimed by appellants. The intention of the grantors must govern. The deed does not convey any right, title or interest, but the property itself. 1 Coke on Lit. 60, 266; 4 Kent, 458, 460; Russell v. Coffin, 8 Pick. 150;Lynch v. Livingston, 2 Seld. 434;Jackson v. Root, 18 Johns. 78;Morrison v. Wilson, 30 Cal. 347; 2 Pars. on Cont. 184, 185; McNear v. McComber, 18 Iowa, 12;Williamson v. Test, 24 Id. 138.

The measure of damages in this case is the consideration money paid by appellants with legal interest thereon, the value of the improvements placed on and in connection with the property conveyed in carrying out the object of the grant, the costs of the suit in which appellants were evicted, and the fees paid appellants' attorneys for defending such suit. Sedgw. on Dam. 174; Gore v. Brazier, 3 Mass. 542;Caswell v. Wendell, 4 Id. 108;Bigelow v. Jones, Id. 513;Sterling v. Peet, 14 Conn. 254.

When it appears from the deed that the grantor knows that the grantee is buying land to place valuable improvements thereon, and there is a breach of the covenant of warranty in the deed, the grantee will be entitled to recover the sum expended in placing such improvements on the land. Pitcher v. Livingston, 4 Johns. 6;Dimmick v. Lockwood, 10 Wend. 149;Staats v. Ten Eyck, 3 Cai. 111; Sedgw. on Dam. 174; Rawle on Cov. 95-100; Sterling v. Peet, 14 Conn. 254.

Respondents are bound by their personal covenants in the deed. Their character as trustees does not affect their liability in this action. Respondents did not disclose their trust. Hill on Trust. 790; Greason v. Keteltas, 17 N. Y. 491.

SHOBER & LOWRY and W. F. SANDERS, for respondents.

The contract sued on is a release and not a conveyance. It does not convey any thing. It is not acknowledged. Acts 1865, 479, §§ 80-88. The deed does not furnish the foundation of an action.

The testimony offered by appellants was not competent. Appellants wished to prove that while one water-right was described in their deed, another was conveyed, from which they had been disseized. The property was described by the laws of nature.

The deed simply abandoned to some one the property. The form of expression in the deed is the lowest that can be used in transferring an estate.

Appellants took by the release the interest of respondents in the property. The covenant of warranty does not enlarge the estate conveyed, and affects only the interest that is conveyed. The deed warrants that the estate actually possessed by respondents is completely extinguished. We have no statute of uses, and the New York decisions, cited by appellants, do not apply to the release in this case. 2 Chitty's Black. 260, “Release;” Gee v. Moore, 14 Cal. 472;Kimball v. Semple, 25 Id. 452; Acts 1865, 487, § 50; 3 Washb. on Real Prop. 404; 4 Kent, 283; Ohio Dig. 310-316; Sweet v. Brown, 12 Metc. 175; Blanchard v. Brooks, 12 Pick. 47;Powers v. Ware, 2 Id. 458.

The complaint of appellants does not therefore state facts sufficient to constitute a cause of action.

Appellants seek to vary the terms of the deed by oral testimony, and prove a liability that their pleadings show did not exist. Such evidence is inadmissible. No action can be maintained for a failure of title of a fork of a stream that was not actually embraced in the deed. Tymason v. Bates, 14 Wend. 672.

WADE, C. J.

This is an appeal from a judgment of nonsuit in the court below. The suit was brought to recover damages for breach of warranty in a deed from defendants to plaintiffs, conveying a certain water-right situate in Oro Fino gulch, Lewis and Clarke county.

The deed in question is in the words and figures following, to wit:

“This indenture made the fifth day of December, in the year of our Lord one thousand eight hundred and sixty-eight, between Edward M. Hoyt and A. M. Holter, of Helena, Lewis and Clarke county, Montana Territory, parties of the first part, and Jesse Taylor, Jeremiah Smith and George Cleveland, parties of the second part, witnesseth: That the said parties of the first part, for and in consideration of two thousand dollars, clean gulch gold dust, to them in hand paid by said parties of the second part, the receipt whereof is hereby acknowledged, hath remised, released and quit-claimed unto the said parties of the second part, and to their heirs and assigns, all that certain water-right lying and being in the county of Lewis and Clarke, Montana Territory, and bounded and particularly described as follows, to wit: A certain water privilege the right of which is now vested in us, described as follows: All the water of the right-hand fork of Oro Fino gulch, at and above a point upon said right-hand fork, where the head of a ditch will strike it, which will convey the waters of said right-hand fork of said Oro Fino gulch into a ditch now owned by Taylor, Smith and Cleveland, conveying the waters of the left-hand fork of Oro Fino gulch into Tucker gulch; said point is supposed to be near some cabins about a quarter of a mile above Unionville. The said water-right hereby conveyed, including the right of the said parties of the second part, at any time they may see proper to carry and convey the said water of the said right-hand fork of said Oro Fino gulch to Tucker gulch, or such other gulch or gulches or mining ground as the said parties of the second part may elect to carry the same, to be by them used or disposed of to their sole use and benefit; together with all and singular the tenements, hereditaments, and appurtenances thereto belonging or in any wise appertaining; and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest we now have in said property, possession, claim and demand whatsoever, as well in law as in equity, of the said parties of the first part, of, in or to the said premises, and every part and parcel thereof with the appurtenances. To have and to hold all and singular the said premises, together with the appurtenances unto the said parties of the second part, their heirs and assigns forever, and we hereby covenant and agree to warrant and defend the title to the same against all claims of all persons whomsoever, whether in law or equity.

In witness whereof the said parties of the first part hath hereunto set their hands and seals the day and year first above written.

On this 5th day of December, 1868, personally appeared before me, A. B. Babcock, of the aforesaid Territory, Edward M. Hoyt and A. M. Holter, and acknowledged under oath that they and each of them signed and jointly did execute the within instrument, of their own free will.

A. B. BABCOCK,

Notary Public.

Upon the trial of the cause to a jury, the plaintiffs, to maintain the issues on their part, offered the foregoing deed in evidence, and the same was received, and read to the jury. It will be seen that this deed is a conveyance of all the waters of the right-hand fork of Oro Fino gulch. The plaintiffs then asked the following question of the witness Taylor, one of the grantees in the deed. “What was intended by the term right-hand fork of Oro Fino gulch?” Which question was objected to, and objection sustained. The plaintiffs then proposed to prove, by competent witnesses, that the plaintiffs became the owners of the right-hand fork of Oro Fino gulch in the year 1866, as were so the owners thereof at the time of the making and execution of the deed from defendants to plaintiffs, on the 5th day of December, 1868; that said plaintiffs at that time were the owners of a ditch conveying the waters of same right-hand fork of Oro Fino gulch into Tucker gulch; that the cabins referred to in said description are situate on the left-hand fork of said gulch, about one-fourth of a mile above Unionville, and that immediately after the execution of the deed from defendants to plaintiffs herein set forth, an agent of defendants, the grantors in said deed, delivered to the plaintiffs, the grantees therein, the waters of the left-hand fork of said Oro Fino gulch, and other testimony of like character. To the introduction of which testimony the defendants objected, which objection was sustained; whereupon plaintiffs submitted to a judgment of nonsuit, and appealed to this court.

The object and purpose of this proof was to show that the grantors intended to convey, and the grantees intended to receive by virtue of the deed in question, the waters of the left-hand fork of Oro Fino gulch, instead of the waters of the right-hand fork, as described in the deed.

This question is presented for solution and decision. Can the words in a deed be altered or changed by extrinsic evidence? In other words, where parties have conveyed all the...