Smith v. Sprague , 40 Vt. 43 ( 1867 )

The opinion of the court was delivered by

Pierpoint, Ch. J.

The questions in this case arise upon the report of 'a referee.

The principle is Well settled in this state, that this court will not revise the proceedings of a referee, unless it appears upon the face of the report that the referee in deciding the questions that were raised before him, intended to decide them according to law, and that in making his'decisions he has clearly mistaken the law.

In this case it does not appear that any question of law was presented for his decision, or that he attempted to decide any question upon legal principles; for ought that appears in the report the referee decided the case entirely upon equitable grounds.

But, conceding that the referee intended to be governed by legal rules in deciding the ease, we are unable to discover that he has •deviated therefrom in disposing of it.

The action is brought upon the covenants against incumbrances contained in a deed of certain premises, executed by the defendant to the plaintiff. The referee finds that the covenants were entered into by the defendant, and that the premises conveyed were incumbered as alleged in the plaintiff’s declaration. He also finds that after the plaintiff took possession of the premises, one Wheeler entered upon the premises, claiming the right to have a drain run across them, and the right to enter upon the premises to clear the drain, etc. The plaintiff thereupon informed the defendant of Wheeler’s claim. The defendant told the plaintiff that Wheeler had no such right, and told the plaintiff to sue him.

The plaintiff thereupon interfered with Wheeler’s use of the drain, and Wheeler sued him. The plaintiff notified the defendant of the suit, and asked him to defend it. This the defendant neglected to do. ■ The plaintiff defended the best he could, was cast in the suit, compelled to pay damages and cost, and incurred considerable expense in defending it, which he now seeks to recover, and which the referee has allowed to him in his report.

The plaintiff did nothing but what he was fully justified in doing, acting upon the assumption that his premises were free frqm incumbrances, as warranted by the defendant, and in view of what the defendant told him when informed of the claim of Wheeler. He was not bound to adopt the defendant’s advice and sue Wheeler, but was at liberty to interfere with Wheeler’s operations, and test his rights in that way. Having been defeated in the suit, he now has the right to go back upon his'warrantor for the damage he has sustained in consequence of the breach of the covenant, and such costs and expenses as he has fairly and in good faith incurred in attempting to maintain and defend his title.

This principle is recognized in Park v. Bates, 12 Vt. 381; Pitkin v. Leavitt, 13 Vt. 379. In the latter case Williams, J., says: “As to the legal costs and expenses in the action of ejectment, the case of Smith v. Compton, 3 Barn. & Ad. 407, is a very decisive authority, not only that there may be a recovery on the covenant when no-notice had been given of the former suit in ejectment, but also that the recovery should be for the necessary cost and expenses in that suit, as well as for the value of the land.” See also Sedg. on Dam. 183 and 187, and cases there cited. It was not error in the county court to allow the referee to amend his report by making a statement in full of the facts that appeared before him on the hearing. Such is the every day practice in the county court, and in a case recently decided in Rutland county, this court held that the county court might properly recommit the report of the referee, for the correction of errors, and the further report of the facts on which the findings were based, and to report to the next term.

Judgment of the county court is affirmed.