Wilder v. Davenport's Estate
| Decision Date | 13 August 1886 |
| Citation | 5 A. 753,58 Vt. 642 |
| Parties | ALONSON L. WILDER v. CHARLES N. DAVENPORT'S ESTATE; J. G. EDDY, ADM'R |
| Court | Vermont Supreme Court |
Action of covenant. Heard on a referee's report, September Term 1885, ROYCE, Ch. J presiding. Judgment that the plaintiff recover for both of the sums reported by the referee. The action was brought to recover damages of the defendant's estate for the alleged breach of the covenant contained in a warranty deed from Charles N. Davenport to A. H. Potter dated July 18, 1871, as set forth in his declaration. The plaintiff gave said deed in evidence. It was given to convey certain lands situated in the towns of Searsburg and Readsboro in Bennington county, described as follows The referee found that, if the plaintiff was entitled to recover for the 100 acres of land in Searsburg he should recover $ 125 and interest since eviction, amounting to $ 192.52; and, if he was entitled to recover for the land in Readsboro, he should recover the further sum of $ 202.
Judgment reversed with costs to the defendant in the Supreme Court. Judgment for the plaintiff for $ 125, and interest, and costs in the County Court.
Martin & Eddy, for the defendant.
In construing deeds the object is to ascertain the intention of the parties. 2 Wash. Real Prop. 673; Collins v. Lavelle, 44 Vt. 230; Flagg v. Eames, 40 Vt. 21. 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. Adams v. Warner, 23 Vt. 395. Another rule we contend for, to wit; that when clauses in a deed are conflicting, other things being equal, the last clause shall be taken as expressing the true intent of the parties. Gilman v. Smiths, 12 Vt. 150; Hibbard v. Hurlburt, 10 Vt. 173. The covenants of seizin were not assignable. Williams v. Wetherbee, 1 Aik. 233; Garfield v. Williams, 2 Vt. 327; Swasey v. Brooks, 30 Vt. 692; Clark v. Conroe, 38 Vt. 469. The covenant to warrant and defend the premises is a covenant running with the land and is assignable, but in order to entitle covenantee to recover he must show an actual disturbance in the possession. 2 Greenl. Ev. 243; Swasey v. Brooks, supra; Boyd v. Bartlett, 36 Vt. 9.
Haskins & Stoddard, for the plaintiff.
The clause in the deed as to the grantor's intention 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 proceeds and follows said clause. Ela v. Card, 2 N.H. 175; Mills v. Catlin, 22 Vt. 98; Cutler v. Tufts, 3 Pick. 273; Morrow v. Willard, 30 Vt. 118. The expression as to the number of acres is a part of the description, and will be rejected, if inconsistent with the actual area indicated by known boundaries, 3 Wash. Real Prop. 348; Lippett v. Kelley, 46 Vt. 516; Powell v. Clark, 5 Mass. 355; Morrow v. Whitney. 95 U.S. 551; Belden v. Seymour, 8 Conn. 19; Hall v. Eaton, 139 Mass. 217. The covenant was assignable. Strong v. Converse, 8 Allen, 559; Pike v. Goodnow, 12 Allen, 474; Guernsey v. Kendall, 55 Vt. 201. Booth could pass by quit-claim all his title and interest together with the covenant of warranty to the plaintiff. Beardsley v. Knight, 10 Vt. 185; Henry v. Bell, 5 Vt. 393; Pingrey v. Watkins, 15 Vt. 479; Sherwood v. Barlow, 19 Conn. 471.
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 is 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 therefore be introducing complete uncertainty in deeds if, after a precise description by metes and bounds without exception or reservation, such description could be overcome, when it turned out that the grantor did not own all he described, by adding a clause as to his intent, such as was done in this deed.
No copy of the second Shippee mortgage is before us, but it is said that in the description therein the premises are bounded on the west by lands of Fuller, and that his land is east of the Woodford line. If this is so it does not aid the defendant; because in the first mortgage the description, as before stated, was the same as in the Davenport deed, and the west boundary is on the Woodford line, and in foreclosing both mortgages together Davenport took a decree for all the land as described in the first mortgage. If the second mortgage did not embrace all the land east of the Woodford line the first one did. The case stands as to description therefore as though there had been but the first mortgage.
The fact that the land contained in the described boundaries was more than one hundred and forty acres cannot relieve the defendant estate; because when the boundaries designate the land with certainty such boundaries control the quantity although stated incorrectly in the deed. A statement of the number of acres, more or less, is mere matter of description and not an agreement or covenant on the part of the grantor. Beach v. Sterns, 1 Aik. 325; Powell v. Clark, 5 Mass. 355.
The defence of the Statute of Limitations, which is urged, does not avail as to the breach of the covenant of warranty, as that runs with the land. If the declaration as to that covenant was defective, it was...
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