The covenant'for the breach, of which the plaintiff seeks to recover, is contained in a deed of a parcel of land called the grammar-school lot, from the defendant as administrator of Amos T. Norris to the plaintiff, dated March 13, 1862. The covenant counted upon is that the defendant would warrant and defend the premises against all persons claiming the same by, from or under the said Amos T. Norris or the defendant. The breach alleged is that the defendant has not warranted and defended the premises, “ for that one Pirineas Page had good and lawful right by virtue of a deed signed, sealed and acknowledged in due form of law from the said Amos T. Norris, and Amos T. Norris, Jr., dated the 20th day of January, A. D. 1858, to take and use sufficient water from any or all of the springs on said granted premises, to fill a two-inch pipe or less at the option of said Page, with the right of digging on and across said land for the purpose of laying necessary pipes and fixtures, and to erect and build a sufficient and necessary reservoir on said lot on either side of the stream leading from said spring, within ten rods of said stream.” The declaration alleges an eviction by Page or his assigns under that deed ; and the case shows that the Newport Water Company, under a deed by Page to them, are taking water from a stream of water on the premises in a two and a half inch pipe, and conveying it to Lake Bridge village in Newport. No question is made but this is such an exercise of the right, the deed of Norris to Page purports to convey, as constitutes a sufficient eviction if such right was granted by the deed to Page, and still existed in Page or his grantee at the date of the defendant’s deed to the plaintiff.
It is insisted on the part of the defense -that no right, interest or easement passed by the deed from Norris to Page for the reason, as it is claimed, that the springs mentioned in the grant have no existence. The county court finds that the Newport Water Company take water from a stream of water on said premises in a two and a half inch pipe and thereby convey it to Lake Village; that the stream from which the Company take the water is made from a swamp, a part of which is on these premises and a part on another lot adjoining, owned by one Ira Eish; that it did not ap
The language of the grant does not import a grant of a spring, but is in terms a grant of “ the right to take and use sufficient water from any or all of the springs on the grammar-school lot, to fill a two inch pipe,” etc. Although the water is spoken of as coming from springs on the lot, it is in another part of the deed spoken of as a stream leading from said springs. It is not necessary to the validity of a grant that every part of the description of the subject matter should be literally true, nor is it necessary in this case that it should be shown that the stream of water has its rise from what in strictness is denominated a spring. The water is there in sufficient abundance to answer the require- . ment of the grant; the stream of water named in the grant is there ; the water is capable of being taken and used in the manner specified in the grant. It would be too narrow a construction to hold this grant void for the alleged reason that the subject matter of it has no existence; more especially at the instance of the grantor or his assigns, while the grantee is enjoying, without complaint on his part, the full benefit of the grant. In construing grants the inclination should be in favor of a construction that will sustain, rather than that which will defeat the grant. The facts found by the court in relation to the source of the stream of water are not sufficient to render the deed inoperative, especially as the grantee is content with what he is enjoying under it.
It is also objected that the deed from Norris to Page is inoperative for the reason that it has but one attesting witness. Chapter -65 of section 4 of the General Statutes provides that “ all deeds and other conveyances of lands, or of any estate or interest therein, shall be signed and sealed by the party granting the same, and signed by two or more witnesses, and acknowledged by the grantor,” etc., and recorded at length in the clerk’s office of the town in which such lands lie. The interest which this deed purports to convey
But it is urged that the deed is good in equity and would be enforced in a court of chancery; and that the existence of an eqxiitable incumbrance is a sufficient breach to sustain this action. But it can not be affirmed that any equitable incumbrance was ever created by the deed, or that it is operative or would be enforced ; especially after the death of the grantor, and after the title to the land has passed to a subsequent purchaser who may be a bona fide purchaser without notice. The recording of such defective deed is not constructive notice to subsequent purchasers. It is true that in a court of equity the execution of such a deed is treated as evidence of an agreement to execute a valid deed, but not conclusive. The relief that chancery affords in such case is in the nature of a decree for a specific performance, but it is not a matter of course that relief is granted. It depends on
But'there is a further objection to the plaintiff’s right of action. In order for the plaintiff to recover, it must appear that there is, or was at the date of the defendant’s deed to the plaintiff, an existing incumbrance upon the premises created by the deed of Nor-, ris to Page. It appears that Amos T. Norris, Jr., who joined with Amos T. Norris in that deed, never had any interest in the premises. The fact that at the date of that deed the premises constituted the homestead of Amos T. Norris and his family, consisting of his wife and minor children, and was so occupied by them as such homestead from that time down to the death #f Amos T. Norris, shows that at the decease of said Norris the premises vested absolutely in his widow and minor-children, unencumbered by the deed of Page; she not having signed the deed, and the premises never having exceeded in value $500. This results from the provisions of the homestead law, in force at the date of the deed, prohibiting the alienation of such homestead except by the joint deed of husband and wife, and providing that on the death of such housekeeper or head of the family, his homestead of the value of $500 shall wholly pass to his widow and children in due course of descent, without being subject to the payment of the debts of the deceased. The proposition of the plaintiff’s counsel is, that the owner of a homestead, having a wife, may, while occupying it as such, convey it by his sole deed and thereby pass the title to the premises during his life, and that at his death and not before, the wife, if she survive him, may assert her right to it provided it has not been lost in the meantime b3r acquiring another homestead ; and that in this case the widow and minor children have not asserted; but on the contrary have waived their homestead right by petitioning the probate court for a sale of the premises. We are by no means prepared to assent to the proposition that the sole deed of the husband in such case would be effectual to disturb the occupancy of the husband and Ms family while they con-