Wilder v. Davenport's Estate

• Decision Date: 13 August 1886
• Citation: 58 Vt. 642,5 A. 753
• Parties: WILDER v. DAVENPORT'S ESTATE.
• Court: Vermont Supreme Court

5 A. 753

58 Vt. 642

WILDER

v. DAVENPORT'S ESTATE.¹

Supreme Court of Vermont.

August 13, 1886.

Exceptions from county court, Windham county.

Action of covenant for breach of warranty. Heard, on report of referee, by the court, Windham county, September term, 1885; Royce, C. J., presiding. Judgment lor the plaintiff for both of the sums reported by the referee. Exceptions by the defendant. The facts are sufficiently set forth in the opinion.

Haskins & Stoddard, for plaintiff.

The defendant does not seriously claim but that the boundaries given in the deed include the land for winch damages are claimed, but insists that the grantor, by the clause, "intending hereby to convey the same lands, and no other, which passed to me by the virtue of the foreclosure of said mortgages," intended to convey and include in his previous description only such lands as he obtained legal title to by virtue of said foreclosure; in other words, that the grantor intended his deed should go for naught, provided the Shippees had no title to the land which they mortgaged. There is no possibility that Potter so understood it. We insist that the clause is descriptive of the thing granted, and not of the quantity of the grantor's interest. Any other construction would do violence to everything in said deed which precedes and follows said clause. Ela v. Card, 2 N. H. 175; Mills v. Catlin, 22 Vt. 98; Cutler v. Tufts, 3 Pick. 273; Spiller v. Scrioner, 36 Vt. 246; Hibbard v. Hurlburt, 10 Vt. 173; Morrow v. Willard, 30 Vt. 118. It is certain that the law will not permit us to reject the boundaries. If there is a boundary in the description which the grantor knew about better than any other, it is fair to presume it was the Woodford town line; but, because the grantor did not own land so far west as that line, we cannot substitute for the western boundary another's land. Where the quantity of land is mentioned in a deed, it is always regarded as part of the description merely, and will be rejected if it be inconsistent with the actual area of the premises, if the same is indicated and ascertained by known monuments and boundaries. 3 Washb. Real Prop. 348; Powell v. Clark, 5 Mass. 355; Beach v. Stearns, 1 Aiken, 325; Morrow v. Whitney, 95 U. S. 551; Lippett v. Kelley, 46 Vt. 516; Belden v. Seymour, 8 Conn. 19; Hall v. Baton, 139 Mass. 217. The defendant insists that we cannot recover, because one Mason levied an execution, issued upon a judgment against the plaintiff in his favor, upon said land. This defense reduces itself to the legal proposition that if A. sells property to B. which belongs to C., and D. takes the property to satisfy a judgment against B., then B. has no remedy against A. for the property which he purchased and paid for, but never received. Such a doctrine cannot prevail. While it is doubtless true that the covenant of seizin was broken when made, and that the right of Potter to bring action thereon was not assignable, still the covenant of warranty ran with the land. The question as to whether Booth could pass, by quitclaim deed, all his title and interest, together with the covenant of warranty, to Wilder, has been decided in this state. Beardsley v. Knight, 10 Vt. 185; Pike v. Goodnow, 12 Allen, 474; Guernsey v. Kendall, 55 Vt. 201.

Martin & Eddy, for defendant.

In construing deeds, it is true that courts have adopted and apply certain rules; but, notwithstanding this, the real object is to ascertain the intention of the parties; in fact, this is the very design of the rules. One rule is that when more than one description is given, and there is a discrepancy, that description will be adhered to as to which there is the least likelihood that a mistake could be committed, and that natural objects control courses and distances. 2 Washb. Real Prop. 674. In Adams v. Warner, 23 Vt. 395, it is held that the rule that a deed is taken most strongly against the grantor is never resorted to when a reasonable analysis can be reached by any other rule or analysis of construction. While it is true that in this deed the western boundary of the land is described as "Woodford line," it is equally clear that it was not the intent of the parties to convey so much land as would pass by such boundary. The parties called the quantity of land described in deed 140 acres. While this is not conclusive of the number of acres, it is a part of the description of the land; and it is highly improbable that had the parties understood that nearly 400 acres—the quantity which the referee's report and the plan shows must have been included if Woodford line was the boundary—was to pass, that they would have called it 140 acres. Again, this land was situated off in the wilds of Searsburg, where it would be a common mistake as to where the lot line was, not to say that the town line itself is as uncertain. Taking these circumstances into consideration, it would seem that the parties meant to use, and did use, words which would put an end to all doubts or uncertainties as to what land was intended to be conveyed. After calling the land 140 acres,—a description entirely inconsistent with that of the boundary which followed,—they wound up by saying: "Intending hereby to convey the same lands, and no other, which passed to me by virtue of the foreclosure of said mortgages."

VEAZEY, J. The covenant to warrant and defend is a covenant running with the land, and is assignable. The declaration declares upon a breach of this covenant in the deed of Davenport to Potter in 1871. The referee finds, in effect, there was such breach, provided the deed conveyed to the Woodford east line. The first question is as to the construction of the descriptive clause of that deed. The description on the west is this: "and west, by Woodford line;" but this, after saying, "supposed to contain 140 acres more or less," is followed by further description as being the same lands which are described in two mortgages therein specified which were assigned to him and foreclosed. Then follows this clause: "Intending hereby to convey the same lands, and no other, which passed to me by virtue of the foreclosure of said mortgages." The referee finds as follows: "I do not find that said Davenport intended to convey any more or other lands than he acquired title to by his mortgages and decree, but he evidently supposed his land extended west to Woodford line." The defendant's counsel insist that the final clause in the description above quoted controls the previous description by metes and bounds, and limits the amount of land described and conveyed to what Davenport actually owned. The description of the west boundary in one of the mortgages and in the decree was the same as in said deed. We think the last clause could not be treated as anything more than a reference to the mortgages and decree for further and more particular description, and that the grantee was only bound to so understand it. So that the case stands on a description by metes and bounds, followed by reference to previous deeds containing the same description. It is hardly supposable that any man intends to convey by a warranty deed land that he does not own. It would...