Reed v. Hatch

We are called upon to give an interpretation to the deed from the plaintiff to William Atkins, under whom the defendant claims title. It is written upon one of the blanks in the common form adopted for deeds of warranty. It contains a description of the land conveyed, containing a saw-mill located thereon. It also grants a right of flowage; and all this is followed by the habendum clause, then by the usual covenants of ownership, seizin in fee and possession by the grantor, freedom from incumbrances, and general warranty.

Immediately following these covenants is inserted in writing a condition or proviso in these words (beginning with a small p): "provided said mill is kept for the manufacture of lumber, or so long as it is kept for said use." The contention between these parties is as to whether this proviso applies to the grant, or only to the covenant of warranty, — the plaintiff claiming the former and the defendant the latter construction to be correct; and the question involves the consideration of the admissibility of parol extrinsic evidence in aid of the interpretation of the deed.

The same general rules apply to the construction of deeds and wills, — the object being to ascertain, if possible, the intention of the grantor or devisor, and then to give that intention effect. If the intention may be ascertained from the deed or will itself, it is unnecessary to consider anything outside the instrument. The condition or proviso here is not to be interpreted as an isolated, detached, and independent provision; but the intention of the parties to the deed is to be "ascertained from a full view of everything contained within the four corners of the instrument." Perkins v. Mathes, 49 N.H. 107, 110; Richardson v. Palmer, 38 N.H. 212, 218, and cases cited; Bell v. Woodward, 46 N.H. 331, 332. The deed must undoubtedly have effect, according to the meaning of its terms, and not according to any erroneous impressions of the parties. Furbush v. Goodwin, 25 N.H. 425.

The court is to place itself, as near as may be, in the situation of the parties; and if that situation can be apprehended without reference to extrinsic evidence, so much the better. See Lane v. Thompson, 43 N.H. 324.

Confining myself, then, to the consideration of that which is apparent upon the face of the deed, the defendant's construction of it seems to me to be forced and unnatural. He does not apply the proviso to the grant, nor to all the covenants, but confines its operation to the covenant of warranty alone.

Now, when a grantor has covenanted that he is the owner, seized and possessed in fee of the premises, and that he has good right to convey them, and that they are free and clear from all incumbrances, the additional covenant of warranty seems to be in reality superfluous. It is implied and comprehended in the preceding covenants.

It has "been urged," said Mr. Rawle, "that the modern covenant of warranty [for it is unknown in English conveyancing — Rawle on Covenants for Title, 4th ed., 206] should do more than protect against ``the consequences incident upon a defective title,' and should, at least to some extent, comprise within itself the virtues of all the covenants for title; yet, in the absence of peculiar local construction, * * such a construction is generally denied, and the covenant of warranty is held to be simply a covenant for quiet enjoyment." Rawle on Covenants for Title 213; 3 Washb. R. P. 399. And "covenants for quiet enjoyment, in themselves, are said to be as effectual by way of estoppel as words of conveyance." Bigelow on Estoppel 349.

Moreover, "it seems to have been long settled that in conveyances in fee simple, containing the words give, grant, c., a covenant of warranty is implied in the word give." PARKER, C. J., in Crouch v. Fowle, 9 N.H. 222; Brown v. Tomlinson, 2 Greene (Iowa) 525; 3 Washb. R. P. 413.

If, then, the covenant of warranty imports nothing more than is implied in the terms of the granting clause, or in the covenants of title, seizin, and freedom from incumbrances, it seems to follow that the condition cannot be restricted in its operation to this meaningless and superfluous covenant, but must be applied to whatever is comprehended in the only effectual parts of the deed; in short, to the grant — the recital by the grantor of his gift, grant, bargain, and sale. The deed is a gift, grant, bargain, and sale of the premises, provides the saw-mill thereon "is kept for the manufacture of lumber, or so long as it is kept for said use."

In this view the defendant's construction of the condition is absurd. The grantor has conveyed the premises by terms which, independent of the special covenant of warranty, imply such a warranty, in terms which operate as an estoppel upon him to say that he was not warranted and will not defend the title; and yet, being thus estopped, he adds the contradictory, irreconcilable, and ineffectual clause, in substance, — "I in expressly warrant the title which I have conveyed in terms implying a warranty, on condition that you keep up a saw-mill on the premises" — affixing the condition to the meaningless and superfluous part of the deed.

So much, I observe, with regard to the purely legal interpretation of the deed, and without reference to the apparent intention of the parties.

But I fail to see how any intention at variance with this construction can be gathered from an inspection of the whole deed.

The grantor conveys a small parcel of land containing little more territory than would seem to be requisite for the convenient enjoyment and use of the saw-mill standing upon it. He also conveys a right of flowage, incident and appurtenant to the use of the saw-mill, — useless without the saw-mill. It is perfectly evident that the grant contemplated by both parties the maintenance of a saw-mill upon the premises granted. The court can see, without any extrinsic evidence, that the maintenance of a saw-mill upon premises contiguous to the remaining property of the grantor, and for his manifest convenience, might have been an inducement to the sale of this land and of the right of flowage; and the court fail to discover any intention that the grantee, by restricting the condition to the covenant of warranty, should hold the land and the right of flowage after he had ceased to maintain the mill, without which the right of flowage would be useless, and the land not apparently of any essential use or value.

I have reached this result without reference, in my own mind, to the extrinsic evidence, the admissibility of which is questioned, thereby avoiding the consideration of the defendant's exception in that respect — which, I may add, however, does not seem to me available. Proof is ordinarily admissible of every material fact that will help to identify not only the person or thing intended, but of anything which will enable the court to comprehend the position of the parties.

With regard to the defendant's position, that, assuming the condition to apply to the grant and not to the special covenant, the estate is not made absolute in the grantee, because the condition, being a condition subsequent, has since the making of it become impossible of performance through the act of God, or by means without the fault of the grantee, it must be observed that an accidental destruction of property by fire, communicated by the negligence or design of man, is not, in a legal sense, the act of God.

Where the law casts a duty on a party, he is excused from its performance if it be rendered impossible by the act of God, which is properly definable as an accident arising from a cause which operates without interference or aid from man — Forward v. Pittard, 1 D. E. 27, 1 Pars. on Con. 635; but where a party contracts to do a thing, his non-performance of the act, unless he has by the terms of his contract provided against contingencies and responsibilities, is not excused by an inevitable accident or other casualty, although not foreseen no within the party's control. 1 Bouv. Inst. 1024.

The acceptance of the plaintiff's deed in this case, containing the provision that the grantee should maintain and keep the mill upon the premises conveyed, for the manufacture of lumber, was an agreement on the part of the defendant, the non-performance of which could not be excused by the accident of its destruction; but, nevertheless, his duty would be discharged, and the proviso would not operate to destroy the plaintiff's grant and give him a right of entry, if within a reasonable time the defendant had rebuilt the mill. Bullock v. Dommitt, 6 D. E. 650. In aid of this construction, we have the manifest intention and understanding of the parties, evidenced by the plaintiff's notice calling on the defendant to rebuild. If the defendant had complied with that notice, it is manifest the plaintiff would have been estopped to deny the performance of the condition upon which the grant was established.

My opinion is that there should be judgment on the verdict.