Trutt v. Spotts

Mr. Justice Mercur

delivered the opinion of the court,

All the assignments of error are to the rejection of evidence. They present the same general question. The contention is whether covenant will lie to redress the alleged grievance.

It is a well-established rule of law that a conveyance of lands bounded on a highway gives the grantee a title to the middle of the road, if the grantor had title to it, unless he reserved it, either expressly or by clear implication: Paul v. Carver, 12 Harris 207; Id., 2 Casey 223; Cox v. Freedley, 9 Id. 124.

The defendant in error was the proprietor of the portion of the town in which the lands in question lie. He sold and conveyed, by deed under seal, to the plaintiff, “ all that certain messuage and lot of ground situate on the north side of Market street, in Spotts’s addition to Mifflinburg marked with number seven, adjoining lot number three on 4he west; Cross street on the east, and alley on the north * * * being part of a larger tract of land conveyed unto the said Benneville Spotts, who is the proprietor of said addition. Together with all and singular the improvements, ways, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging or in any wise appertaining.” This language clearly imports that the streets named did exist; that they were located adjoining the lot conveyed; that they' were then open to public use, and that all the privileges and benefits incident to streets were a part of the ways belonging and appertaining to the lot. They are not referred to merely as descriptive of the boundaries, but their actual location is unquestionably averred. It is a substantial part of the contract, and creates a covenant of its truthfulness; Dailey v. Beck’s Executors, Brightly’s Rep. 107. A covenant does not require any express words. Any words which show the party asserted in a deed, that a matter material to the contract had been done, amounts to a covenant that it has been done: Shep. Touch., Covenant, page 160; Com. Dig., Covenant, p. 268. A false description may avoid the deed and give covenant against the grantor. It may be descriptive and also an assertion of something more than description. A recital may and often does import a warranty: Pow. on Contracts 143. The defendant did not sell, nor did the plaintiff buy, a lot situate in the central part of a farm, removed from roads, and without access thereto. Such was not the understanding of the parties. The conveyance was of lot No. 7 in defendant’s addition to the town. It matters not that the plot of this addition was not attached to the deed. The reference therein to the lot by number made the plan evidence of its location. As the lot was located by the streets, and by another lot of a designated number, all of which were a part of the plan or plot of the town, a knowledge of the plan was necessary to ascertain the actual location on the ground of the lot; and also the intention of the parties to the contract: Birmingham v. Anderson, 12 Wright 253. The view we take of this case giving the plaintiff his action of covenant does not conflict with the general rule that a covenant of warranty protects only against an ouster from the possession. The action lies by reason of the defendant’s covenant not being verified by the facts. Nor is the conclusion we have reached necessarily in conflict with Bellinger v. Burial-ground Society, 10 Barr 135. There the street had actually been laid out by the public authorities before the conveyance was executed of the lot bounded thereby. The street was subsequently vacated by the same authorities. That case- was therefore unlike the present case. The learned judge therefore erred in excluding the evidence offered.

Judgment reversed, and a venire facias de novo awarded.