Farnum v. Peterson, 111 Mass. 148

Farnum v. Peterson

111 Mass. 148 | Mass. | 1872

Wells, J.

Whatever may have been the nature and extent of the title or right which Campbell acquired from How and others, and conveyed to the defendant, it was not an absolute or perfect one. The right of redemption from the mortgage held by How and others remained outstanding in Jonas Davis as heir of Elnathan Davis. That right does not appear to have been foreclosed in any manner.

It is immaterial, therefore, whether the defendant acquired a legal interest under the mortgage title, or held the land by disseisin only. By means of a writ of entry, or a bill to redeem, or both, Davis might have been restored to possession and full title; and thus the title which the defendant conveyed to the plaintiff would have been defeated. Such an outstanding right is an incumbrance, in the sense of the covenant against incumbrances. Prescott v. Trueman, 4 Mass. 627. Chapel v. Bull, 17 Mass. 213.

There was, then, a breach of that covenant shown in this case. The measure of damages, if the incumbrance has been removed, is the fair and reasonable amount expended, in good faith, in removing it.

We are satisfied that it has been removed. The quitclaim deeds from Davis and Capen, although not competent to confer seisin, or to pass the legal title to a third party, yet were competent to release the title of the grantors to any one who had the possession, and thus to merge the two interests.

*151When it is said that the deed of one, who is disseised, is void, it is intended only that it is inoperative to convey legal title and seisin, or a right of entry, upon which the grantee may maintain an action in his own name against one who has actual seisin. It is not void as a contract between the parties to it. The grantee may avail himself of it against the grantor by way of estoppel; or by suit upon the covenants; or may recover the land by an action in the name of the grantor. Although he has no right of entry, yet if by any lawful means he comes into possession, he may then avail himself of the title of his disseised grantor, and, by uniting that to his own present possession, defeat recovery by the intermediate disseisor. Waite v. Lindsay, 6 Met. 407, 413. Cleaveland v. Flagg, 4 Cush. 76. And his title will also be made good against any one attempting to set up a deed from his grantor subsequent to his own. White v. Patten, 24 Pick. 324. It is true, that Capen, having never gained possession of the land, could neither convey title nor transfer to his grantee any right of action against his own grantor upon the covenants in the deed to himself. But there is nothing to prevent that deed from operating as a release from Davis of all claim or right, in favor of any party in possession, who, by succession of apparent conveyance, might be able to avail himself of it, consistently with the rules of law in this respect. The same considerations which forbid the transfer of an adverse title by a disseisee, favor such a construction of deeds as will tend to unite the seisin with the apparent title of record.

The evidence that Capen knew of the occupation of the defendant and did not disclose his own claim or right, and that the plaintiff sought out the outstanding title and procured the deeds of quitclaim, without calling upon the defendant to clear the title, or giving him an opportunity to do so, was competent upon the question of good faith, and the reasonableness of the expenditure, and thus to affect the damages. But no question of law arises therefrom; and the case finds that “ no objection was made to the reasonableness thereof.”

The case appears to have been properly submitted to the jury.

Exceptions overruled.