Mills v. Catlin , 22 Vt. 98 ( 1849 )

The opinion of the court was delivered by

Bennett, J.

An important question is raised in this case, in relation to the construction of the granting part of the deed from the defendant to the plaintiff. The grant, or rather the thing granted, is, thus described by the grantor, — “ the following described land in Colchester; all the land which I own by virtue of a deed, dated the eighteenth day of January, 1843, from Asa S. Mills, recorded,” &c, — “ being all my right and title to the land comprising fifty acres off of the east end of lot No. 75 in said town.” This deed should be construed according to the intention of the parties, as manifested by the entire instrument. The habendum, is, to have and hold the above granted and bargained premises, &c., referring to the granting part of the deed. The deed has also the usual covenants, expressed in common form. The deed from Asa S. Mills to the defendant, in the granting part, purports to convey “ the following land, situated in Colchester,” &c., “described as follows, to wit, one equal undivided half of fifty acres from the east end of lot No. 75, which fifty acres is the same land deeded to Myron Mills and Henry W. Catlin on the fifth of November, 1833.” We think, upon the whole deed, it is to be taken, that the thing granted in the premises of the deed is the land itself, and not simply such title to it, as Catlin derived from his grantor.

The grant is, of the following described land, to wit, all the land, which I own by virtue of the deed of Asa S. Mills to me. These latter words are evidently used as descriptive of the thing granted, that is, of the land itself, and not of the quantity of interest in the land. The habendum in the deed is consistent with this. The covenants are, that the defendant is seized of the premises in fee simple, that he has good right to bargain and sell the same, that they were clear and free of all incumbrances, and that he would defend the same against the lawful claims of all persons whatever. Though it may be true, that the covenants in a deed should not be so understood, as to enlarge the estate granted in the premises of the deed, yet when it becomes a question of construction, as to what is granted, they may well be resorted to, to help out the construction,— and this upon the principle, that reference is to be had to the whole deed, and that every part is to have an operation, if possible.

If the thing granted in the premises of Catlin’s deed were only such a right and title to the undivided half of the fifty acres, as he acquired from Asa S. Mills, then the operation of the covenants should be so limited, as to insure to the grantee such and only such an interest. But this would be opposed to the obvious import of the covenants, and render them in a great degree ineffectual. Catlin covenants, that he is seized of the premises in fee simple; and this implies, that he has the whole estate; and he covenants to defend them against all lawful claims whatever. But upon the defendant’s construction of the deed, the covenants should only insure to the grantee such a title, as Catlin had acquired to the premises by his deed; and if he had acquired none, then they would be worthless. This, in effect, would be only to covenant against his own acts, going to impair whatever title he might have acquired under his deed.

The closing words in the description of what is granted in the defendant’s deed, viz., “ being all my right and title to the land comprising fifty acres from the east end of lot No. 75,” were probably thrown in, for the reason that only an undivided moiety of the fifty acres had been conveyed to Catlin by Asa S. Mills; and though these words, standing alone, are appropriate to describe the interest conveyed, yet to give them that operation, in the connection in which they are used, would be to reverse the rule, which requires the construction to be on the entire deed. Words should always be understood with reference to the subject matter and the connection in which they are used. The subject matter of the grant, we think, was the land itself; and it need hardly be remarked, that land, not only in its legal but popular sense, comprehends the soil, or ground, itself.

Upon the principle, then, that the construction is to be upon the entire deed, and that one part is to help expound another, and that every word, if possible, is to have effect, and none be rejected, and all the parts thereof agree and stand together, we think it must be held to have been the intention of the parties to grant the land, and that the habendum in the deed is to hold the land, and the covenants are, as they import to be, unlimited, and relate to the land and insure title to it. But if, after all, we considered the intention of the parties ambiguous, the rule would be interposed, that the construction, in such case, is to be most strongly against the grantor, and in favor of the grantee, — and this to prevent an evasion of the covenants by the grantor, by his use of obscure and equivocal w'ords.

It follows, then, that this declaration is according to the legal effect of the deed, and the objection of variance is removed.

Under the motion in arrest, it is claimed, that there is no sufficient breach of the covenant against incumbrances assigned, either in the declaration, or in the plaintiff’s replication to the defendant’s plea of performance. I understand the law is well settled, that in assigning a breach of the covenant against incumbrances, it is not sufficient to allege, in a direct negative, that the defendant has not kept and performed his said covenant; but the breach must be specially assigned, setting forth the incumbrance complained of. So far as this covenant is concerned, the declaration is ill clearly on demurrer ; and whether this is such a defect, as would be cured by verdict, it is not necessary to consider, much less to decide. All the authorities agree, that a general assignment of breaches on the covenant of seisin and of good right to bargain and sell is sufficient. So much of the declaration, as is founded upon these two covenants, is well enough. The question then arises-, does the outstanding life estate in Hannah Mills, at the time of the execution of Catlin’s deed, constitute a breach of either of these covenants?

As Hannah Mills took her deed of her life estate from Catlin’s grantor and one Myron Mills, Catlin cannot deny its validity; and we think her life estate in the premises was a breach of the covenant of seisin, and I also think of the covenant, that the defendant had a good and lawful right to convey in fee simple. Whatever have been the decisions in other states, our courts have held, that the covenant of seisin imports a covenant of title. See Catlin v. Hurlburt, 3 Vt. 403. In Richardson v. Dorr, 5 Vt. 19, it is said, that to satisfy a covenant, that the vendor is seised in fee simple, it must appear, that he not only had an estate in the lands in fee, but also that he was seised of the same and had a right of possession. If his estate were less than a fee, or if he were seised by wrong, it could not in either case be said, that he was lawfully seised in fee. To be seised in fee simple, a man must have the whole estate, and not simply a part of it. The covenant of seisin is an assurance to the purchaser, that his grantor has the very estate, both in quantity and quality, which he purports to convey. Platt on Cor. 306. Howell v. Richards, 11 East 642. The life estate, then, outstanding in Hannah Mills, was a breach of the covenant of seisin, and no eviction was necessary.

We see no objection, that the jury should have had the tables of Dr. Wigglesworth to aid them in calculating the value of the outstanding life estate; and it was evidently for this purpose, that they went to the jury. Evidence had been given of the age of Mrs. Mills, and the general state of her health, and there is no complaint, but what the jury received proper instructions in regard to the use to be made of the tables.

The evidence offered by the defendant, that the plaintiff had always been in the possession of the premises, since he took his deed from Catlin, was properly excluded by the county court. If so, the plaintiff would be liable to Hannah Mills for the mesne profits; and consequently it should not affect the damages in this case. Catlin had no right to put the plaintiff in possession, as against Mrs. Mills, and of course the possession could not enure to Gatlin’s benefit, so long as the plaintiff was liable to pay her for the use and occupation.

The only question raised on the bill of exceptions, growing out of the charge of the court, is in relation to the effect of the evidence, in showing a breach of the covenants declared upon. The declaration being good, so far as relates to the covenant of seisin, and the outstanding life estate being a breach of that covenant, the plaintiff may well retain his verdict. If the declaration were bad, so far as relates to the covenant against incumbrances, that part of it might have been met by a demurrer, and the residue by a plea. Though a question has been argued in this court in reference to the rule of damages adopted by the county court, yet no such question is saved on this bill of exceptions. It may perhaps be quite questionable, whether the county court adopted the correct rule; but it seemed to be satisfactory to the parties at the time.

The result is, we find no error in the proceedings of the county court, and their judgment must be affirmed.