10 Vt. 185 | Vt. | 1838
After argument, the opinion of the Court was delivered by
In this case, the claim, directly against the estate of Hatch, is founded on the reserved right Of each to avoid the partition on the failure of title to any portion of the estate divided. We see no sufficient reason to adopt the orator’s view of this part of the case. In the Old law of exchange, something similar to the right here
A tenancy in common may exist of unequal interests, and is always of different titles. Before the division, one tenant has no interest in the title of the other. It is supposed ¿the title of both is perfect. If the title of either is defective, he is not entitled to claim partition, and if he sue for it, either under the statute, or in Chancery, he will not be entitled to it, until his title is fully established. But if the co-tenant is willing to waive all dispute of title, and recognize him as co-tenant, and proceed to a division, which is effected by each conveying a portion of the land to the other, we know of no reason why this should be treated differently from other cases of conveyances between parties differently situated.
If that rule be applied to the present case, there is no reason why the orator should have any claim upon Hatch’s estate, unless Hatch knew of the defect of title at the time of the division, and permitted the orator to accept of it, under the impression that the title was perfect. This might amount to a fraud, under the circumstances. The rule of law in relation to the liability of the grantor, in case of the failure of title, where the conveyance is by quit-claim deed, is too familiar to the profession to require comment. The grantor is, in no case, liable, unless he has been guilty of fraud, in representing the title different from what it was, and from what he believed it to be. The evidence in the present case falls very far short of showing that Hatch had any knowledge of the defect of title now complained of, at the time of the division. It is almost certain, that neither party had any expectation of such defect. Hence no such liability attaches against the estate of Hatch, as will warrant this court either in setting aside the division, or ordering contribution out of that estate. For although the manner of conveying was so defective that it could not operate at law, yet a court of equity considers that as done which was agreed to be done. And
We are next to inquire how far the other defendants are liable in this suit. It has been decided that the estate of Knight or Hyde, either or both, are not liable at law, on account of the defective manner of the conveyance. Beardsley v. Knight, 4 Vt. R. 471. But in accordance with the rule now just alluded to, we are asked to perfect that conveyance. And a court of equity will always correct mistakes. This subject indeed forms one appropriate branch of its jurisdiction. We are often called upon to exercise this power, in relation to defective conveyances of land, and in no case have the court refused to interfere, where the mistake was undeniably proved. But unless it be so proved, the court will never interfere. In relation to the subject of conveyances, it makes no difference whether the mistake is in regard to a statutory or common law requisite ; or whether, indeed, the parties failed of executing such an instrument as they intended, or mistook in reference to the operation of the instrument. If it be clearly shown that the parties did not effect what they intended to do, a court of Chancery will perfect the intention. In the present case, it is conceded on all hands, that the parties intended to convey, each to the other, by the common deed of quit-claim. ^ This would have been sufficient to have passed the covenants of Knight and Hyde to the orator, and also the covenants of Berry to them, i. e. those covenants which pass with the land. . And the orator will no doubt be entitled to all indemnity for his loss of land, which he can obtain from those covenants.
As the orator has been compelled to resort to this court, to establish the conveyance from Hatch, in order that he could reach Knight and Hyde, it was proper that he should join all parties, nominally or really interested in the transaction. And as the orator was compelled to resort to this court for one purpose, in order to make out a case, the suit will be retained here until finally disposed of.
It is attempted to be shown that the orator has in his hands funds belonging to the estate of Berry, who is ultimately liable for this failure of title, and it is insisted that he should be compelled to resort to that fund. If this were the case, or if there were any good reason to believe such would
The orator then would seem to have made out a good claim against the estate of Knight, and also against the estate of Hyde, either in the hands of the administrator, or of the heirs, as the case may be. The administrator of Hyde insists upon his plea of plene administravit. It is admitted the administrator of Hyde was one of the heirs. The estate was represented insolvent, commissioners appointed, the debts all paid, and all the estate, both real and personal, distributed, except the reversion of the widow’s dower. The real estate was by the probate court assigned to the defendant, he paying the other heirs their shares, so that the deféndant, Hyde, held most of the real estate as purchaser, and not as heir. The personal property being sufficient to meet all the debts, the administrator, as such, had never any lien upon the real estate. Nor could the reversion of the widow’s dower be in any sense considered as assets in his hands, after the distribution of all the other estate, and the payment of all debts then in existence. Hence the administrator of Hyde is not, in that capacity, liable. The orator must then elect to bring in the heirs of Hyde, or to take such decree as the court will give him against the other defendants.
On motion of the orator, the case was continued, with leave to the orator to file his supplemental bill, and join the other heirs of Hyde, who will of course, when joined, have a right to contest the case on its original merits.
