Jarvis v. Buttrick , 42 Mass. 480 ( 1840 )

Wilde, J.

This was an action of covenant brought for the alleged breach of the covenant against incumbrances, contained in a deed of conveyance of real estate, from the defendant to the plaintiff. By the granting part of the deed, it appears tha the estate was “ sold subject to the right which Hannah But-trick, and Emeline Buttrick, the widow and daughter of the late John Buttrick, deceased, have in the same : Said Hannah’s right is only during her widowhood, and said Emeline’s right to exist no longer than said Hannah occupies the part of the premises, to which she is entitled under said John But-trick’s will.” Among other covenants, the defendant covenanted that the granted premises were “ free from all incumbrances except the abovenamed have in the same.” The breach alleged is, that the said Hannah died on the first day of June, 1839, and that the said Emeline has ever since that time continued to occupy the part of the house on said granted premises, which was given her by the said John Buttrick’s will; and that she had a right so to occupy it. By the will it appears that the use of certain parts of the house was given to the said Emeline, in common with the said Hannah, “ which use the said Emeline may have and enjoy, so long as she remains unmarried.” It being agreed that the said Emeline still remains unmarried, we think it very clear, that she is entitled to the use of that part of the house which was given her by the will.

It was argued for the defendant, that Emeline had no right to the use and occupation except in common with her mother, the said Hannah. But such a construction is inadmissible. It is repugnant to the express words of the will, which demies, and limits the use. The prior words of the will, which gave to the said Emeline the use and privileges in the house, in common with the said Hannah, were intended to limit her right during the said Hannah’s life ; and the limitation ceased on her death.

Then it was argued, that the defendant did not covenant that the right of the said Emeline was limited to the life of the said Hannah: That the words of the will, on which the plaintiff re-

lies, are words of description and do not amount to a covenant. But there is an express covenant, that the granted premises were free from all incumbrances except those which the abovenamed had in the same. Those incumbrances and claims had been limited in the description of the estate conveyed, and were unquestionably referred to as there described. To give the true construction of any clause in a deed, other parts of the deed are to be considered, in order to ascertain the intention of the parties ; and taking all parts of the deed into consideration, we can have no doubt of the true meaning of the covenant against incumbrances. It is a covenant against all incumbrances, except those which were excepted and defined in the description of the estate conveyed.

Judgment for the plaintiff.