Bates v. Foster , 59 Me. 157 ( 1871 )

DaNfoutii, J.

This is an action for a breach of the usual covenants in a deed of warranty. Whether there has been any breach depends upon the construction to be given to the language used in describing the grant and the premises conveyed; for the covenants in a deed are limited in effect by the description of the grant. Hoxie v. Finney, 16 Gray, 332 and cases cited; Freeman v. Foster, 55 Maine, 508; Coe v. Persons Unknown, 43 Maine, 432.

The defendant’s deed, after the usual words of conveyance “ give, grant, sell, and convey,” followed by a description of the premisos, has thoso words, “ And moaning hereby to convey to the said Bates the same premises and title as conveyed to mo by Daniel Witham, and no more.” It appears that Witham conveyed to the defendant only an equity of redemption from a certain mortgage ; that the same mortgage was still outstanding at the date of the defendant’s deed to the plaintiff, and that the plaintiff was subsequently obliged to pay it.

Did, then, the defendant, by his deed, convey to the plaintiff the interest -which he received from Witham and no more, or did he convey the whole title to the land and thereby covenant against the subsisting mortgage?

The defendant, in Ms deed, says be intended to convey the same he received from Witham and “no more.” But it is said that these words are repugnant to what goes before, and are, therefore, void. Such a construction is not admissible unless they are necessarily so inconsistent that both cannot stand together. Whatever may have formerly been the rules of construction in this respect, “ in modern times, they have given way to the more sensible rule, which is, in all cases, to give effect to the intention of the parties if practicable, when no principle of law is thereby violated.” Pike v. Munroe, 36 Maine, 315.

It was certainly competent for the grantor to convey just such an interest in the land as he chose to do, therefore no principle of law prevents the giving effect to his clearly expressed intention.

Nor is the latter clause in the description necessarily repugnant to or 'inconsistent with the former. It is undoubtedly true that what is expressly granted, cannot by subsequent clauses be restricted. But to have this effect, the grant must be express and specific, and not general. Cutler v. Tufts, 3 Pick. 272-277; 3 Washb. Real Prop. 3d ed. 370.

The words “ give, grant, sell, and convey ” do not, of themselves, imply a warranty. Allen v. Sayward, 5 Maine, 230.

Nor do they expressly and specifically convey the whole title, but are rather words of general description, susceptible of explanation or modification by other appropriate language. They are just as applicable to the conveyance of a right of redemption as to the grant of a fee.

If the words, “ same title conveyed to me by Daniel Witham,” had immediately followed the words, “ give, grant,” etc., no doubt could then have been raised as to the meaning of the language or the intention of the parties, and the use of the words would have been entirely appropriate. The right of redemption, and that alone, would have been conveyed.

It can make no difference that the qualifying phrase is further on in the sentence. It is still a part of the description of the title conveyed. The latter words explain the former, and are fit and appropriate for that purpose. They do not destroy or take away tbe meaning and effect of tbe first, either in relation to the whole grant or any portion of it, but are simply an explanation.

Taking the whole description together, giving each word its proper signification, as modified by its connections, and the meaning is free from ambiguity; but leave out the latter part, and it is quite as clear that we fail in giving effect to the intention of the parties.

Adopting another test, and we are led to the same conclusion. For the words “ meaning the same title conveyed to me by With-am, substitute “ subject to the mortgage named,” the meaning would be unchanged. The title conveyed would be the same as that obtained of Witham. This would bring it directly within the common practice of reservation, and exceptions made in deeds and within the principle settled in numerous cases. Kinnear v. Lowell, 34 Maine, 299; Freeman v. Foster, 55 Maine, 508; Higgins v. Wasgatt, 34 Maine, 305; Cole v. Coburn, 18 Pick. 397; Chenery v. Stevens, 97 Mass. 77.

We are, therefore, of the opinion, that, both upon principle and authority, the two clauses in the deed are not repugnant but may stand together, and the former, as explained by the latter, must be considered as the true moaning of the deed.

Plaintiff nonsuit.

AppijstoN, C. J.; CuttiNG, KeNT, Baueqws, and Tajpley, JJ., concurred.