Williamson v. Williamson

• Decision Date: 24 November 1880
• Citation: 71 Me. 442
• Parties: MARGARET WILLIAMSON v. JOHN WILLIAMSON.
• Court: Maine Supreme Court

71 Me. 442

MARGARET WILLIAMSON v. JOHN WILLIAMSON.

Supreme Judicial Court of Maine.

November 24, 1880

ON REPORT.

COVENANT BROKEN.

The opinion states the case

Enoch Foster, for the plaintiff, cited: 4 Kent Com. 9*, 471* 472*; Bell v. Twilight, 26 N.H. 401; Blanchard v. Brooks, 12 Pick 47; Loomis v. Bedel, 11 N.H 86; Sweet v. Brown, 12 Met. 177; Kimball v Blaisdell, 5 N.H. 533; Miller et als. v. Ewing, 6 Cush. 40; Coe v. Persons unknown, 43 Me. 436; 2 Wash. R. P. 660*, 667*; Curtis v. Deering, 12 Me. 499; Hill v. Bacon, 110 Mass. 388; Cole v. Lee, 30 Me. 397; Thayer v. Clemence, 22 Pick. 494; 5 Am. Rep. 149; 1 Chit. Pl. 17*, 19*, 21*; Griffin v. Fairbrother, 10 Me. 91; Wendell v. Abbott, 43 N.H. 73; Abbot v. Banfield, Idem, 155; Freeman v. Atwood, 50 Me. 474; Crooker v. Jewell, 29 Me. 530; Chase v. Weston, 12 N.H. 413; Wheeler v. Sohier, 3 Cush. 222; Russ v. Perry. 49 N.H. 551; Clark et al. v. Swift, 3 Met. 392; Ballard v. Child, 34 Me. 356, and many other authorities.

Hammons, for the defendant, contended that the action could not be maintained, but if it could, only nominal damages would follow.

The plaintiff's devisor lost his title some three years before his death and before he made his will. At that time he had no interest in the premises which he could devise or will. And no title nor interest in the premises passed to the plaintiff and the covenants in the defendant's deed did not pass to her. Her devisor was a mere tenant at sufferance after April, 1863. 4 Kent Com. 116; Sanders v. Richardson, 14 Pick. 522; Kinsley v. Ames, 2 Met. 29; Hollis v. Pool, 3 Met. 350; Creech v. Crockett, 5 Cush. 133; Hamilton v. Cutts, 4 Mass. 352; Comings v. Little, 24 Pick. 266.

The measure of damages is not the value of the land but the the value of the defendant's right, title and interest. Coe v. Persons unknown, 43 Me. 432.

SYMONDS J.

On January 11, 1862, the defendant, holding a mortgage on a tract of land in Newry, which included the twelve acres to which this suit relates, gave a quitclaim deed of all his right, title and interest in and to the twelve acres to David Williamson, the plaintiff's husband and devisor, with the usual covenant to warrant and defend against all persons claiming by, through or under him. This deed was not recorded till May 10, 1871.

On January 14, 1862, Reuben F. Eames and others, who owned the equity of redemption, gave a warranty deed of the same premises to the same David Williamson; the two deeds investing him at that time with full title to the twelve acres.

On January 21, 1863, the defendant, without mention of the release of the twelve acres, assigned the whole mortgage (proceedings to foreclose the same by publication, having been begun on April 20, 1860,) to Melicent J. Newton, from whom by mesne conveyances the interest of the mortgagee passed in 1868 to Robert G. Wiley, who on a writ of entry recovered judgment against this plaintiff and evicted her in 1878 from the twelveacre lot, which she claimed to hold as devisee of her husband; such assignment of the whole mortgage to Melicent J. Newton, having been recorded on April 21, 1863, before the record of the quitclaim deed from the defendant to David Williamson, and being held effective, therefore, to convey, to one who had no notice of the earlier, unrecorded deed, the mortgagee's entire interest; in the twelve acres, as well as in the rest of the mortgaged tract. Wiley v. Williamson, 68 Me. 71.

David Williamson, having remained in undisturbed possession of the twelve acres during his life, died in February, 1866. His will was approved in May, 1866, giving all his real estate to the plaintiff, so long as she remained his widow, her heirs and assigns. This qualified estate has never been terminated by a subsequent marriage, and for the present purpose may properly be treated as an estate in fee; --if the husband had such an estate to devise.

Having been evicted by a superior title, created by the defendant himself after his warranty contained in the quitclaim deed, the plaintiff brings this action of covenant broken.

I. On one branch of the case, it is claimed by the plaintiff that no legal foreclosure of the mortgage to the defendant is proved; --inasmuch as the only evidence of the contents of the notice of foreclosure, of the fact or manner of its publication, of the name of the newspaper in which the notice was given, or the place or date of its issue, is the recorded certificate of one who signs as James Nutting, publisher of Bethel Courier; --without oath, or any official standing to give the certificate effect in evidence. R. S., c. 90, § 5.

The answer to this objection is, that the fact and the validity of the foreclosure are averred in both counts of the plaintiff's declaration. The plaintiff is not in position to deny what is claimed by the defendant and what her own pleadings assert. It cannot be known that other evidence of the publication of notice would not have been offered by the defendant, had the pleadings raised this issue. We shall, therefore, regard the foreclosure of the mortgage as complete in April, 1863, nearly three years before the death of David Williamson.

II. The defendant claims that the plaintiff cannot maintain this action, because she never had seizin of the twelve-acre lot; that by the earlier registration of the assignment of the mortgage to Newton, and the foreclosure, David Williamson in his lifetime had lost all title to the premises, nothing passed to the plaintiff by the will, and she has no right to invoke to her use or in her aid even the covenants which ran with the land; --in other words, that the plaintiff is a stranger to the title, to whom the obligation of the covenant does not extend.

The plaintiff has a clear title under her husband's will to this land, except for the wrongful act of the defendant in assigning his interest therein as mortgagee to a stranger after he had once released it to the plaintiff's devisor. The eviction by superior title--that is to say, by a title which on account of earlier registry took precedence--which constitutes the breach of such a covenant to defend, occurred after the death...