Coe v. Persons Unknown , 43 Me. 432 ( 1857 )

Hathaway, J.

The petitioner represents that he is tenant in common with other persons unknown to him, of township number one, in the third range, west of Moosehead Lake, in the county of Somerset, and that his part of the land in said township is four thousand acres, and he prays for partition.

Robert Bradley appears, claiming title, and defends.

Samuel A. Bradley owned the township, and by deed of October 18, 1836, recorded January 4, 1849, conveyed the land claimed by the petitioner to George Evans, who, by deed of November 24, 1850, recorded December 6, 1852, conveyed the same to the petitioner.

By mortgage deed of May 19, 1841, recorded June 12, 1844, Samuel A. Bradley conveyed to Robert and Richard Bradley all his right, title and interest in and to said township, subject to a mortgage of the same; before that time, made by him, to James Rundlet.

The mortgage to Rundlet conveyed eighteen thousand acres, in common and undivided, and was dated July 1,1837, and recorded July 10, 1837, and was assigned to Robert Bradley, October 29, 1849. Samuel A. Bradley, also, by deed of July 25, 1839, which was recorded December 22, 1854, conveyed to Mary Ann Bradley and others all his right, title and interest in and to six thousand acres, in common and undivided, of the same township. Robert Bradley was sole heir at law of Mary Ann Bradley, who died in July, 1841.

The deed to George Evans, of October 18, 1836, was not recorded until after the execution and record of the mortgage to Robert and Richard Bradley, by which mortgage the mortgager conveyed all his right, title and interest in and to the township described therein, with covenants of general warranty. The conveyance to Mary Ann Bradley was of the “ right, title and interest” of the grantor, but there were no covenants.

A conveyance of all the right, title and interest which the grantor has in and to the land described in his deed, conveys only the right, title and interest, which he actually has, at the time of the conveyance. It assumes to convey no more. The grant, in the deed, is of all his right, title and interest in the land, and not of the land itself, or any particular estate in the land. It passes no estate, which is not then possessed by the party.

When a grantee takes, by so indefinite description as the right, title and interest, which the grantor has, he must take the risk of the grantor’s right, title and interest, and the covenants, in the deed, are qualified and limited by the grant; they cannot enlarge it. Blanchard v. Brooks, 12 Pick., 47; Brown v. Jackson, 3 Wheaton, 449; Adams v. Cuddy, 13 Pick., 460; Allen v. Holton, 20 Pick., 458; Sweet v. Brown, 12 Met., 175; Pike v. Galvin, 29 Maine R., 183; Partridge v. Patten, 33 Maine R., 483; opinion of Tenney, C. J., in Merrill v. Ireland, 40 Maine R., 569; Oliver v. Pratt, 3 Howard, 332; Clarke v. Strickland, 2 Curtis, C. C. U. S. Rep., 439.

It has been decided, in this State, that an attachment of “ all the debtor’s right, title and interest in and to any real estate, in the county of Penobscot,” is valid, and sufficient to hold, subject to the attachment, all his real estate, in that county, against the title of one claiming under a prior, unrecorded deed from the debtor. And reasons why the words, “ all the right, title and interest,” when used by an officer in his return of an attachment of real estate, should have a meaning and an effect different from, and more enlarged than that which they have when used by a grantor, in a deed of conveyance, are stated by the court, in Roberts v. Bourne, 23 Maine R., 165.

The deed to George Evans, whether registered or not, gave a good title against the grantor and his heirs. This, therefore, ho had legally parted with, and it did not come within the general description of the estate conveyed to Robert and Richard Bradley.

And besides, upon another ground, the petitioner’s title is maintained.

Samuel A. Bradley did not convey, or attempt to convey, to Robert and Richard Bradley any right, title or interest in and to the four thousand acres of land which he had previously conveyed to George Evans. The description, in the mortgage to them, of the estate conveyed thereby, excludes that land.

When he mortgaged to them, there appears to have been no conveyance from him, on record, of any portion of that township, except the mortgage, of eighteen thousand acres, to Rundlet.

The township contained twenty-two thousand and eighty acres, besides the reserved lots. He mortgaged to Robert and Richard Bradley “ all the right, title and interest which I, the said Samuel A. Bradley, have in and to the township, Ac., subject to a mortgage of the same, heretofore made by me to James Rundlet.” This language described and defined the right, title and interest which he had, and which he conveyed to them, as being in and to the same land which he had mortgaged to Rundlet. He therefore conveyed to them only his equity of redemption of the eighteen thousand acres mortgaged to Rundlet.

The petitioner is entitled to judgment for partition.

Rice, Goodenow, and Davis, J. J., concurred in the result.