Johnson v. Muzzy, 45 Vt. 419

Johnson v. Muzzy

45 Vt. 419 | Vt. | 1873

The opinion of the court was delivered by

Royce, J.

This is an action of covenant, brought to recover for the rent of certain promises situate in the village of Jamaica. *421The declaration alleges that the plaintiffs and the defendant made a certain indenture, dated the 20th day of August, 1862, which was sealed with their seals, and that in and by said indenture, the defendant, among other things, covenanted and agreed to pay the rent, for the recovery of which this suit is brought.

The defendant pleads non e.st factum. The plaintiffs offered in evidence the lease of the premises described in the declaration, accompanied with the offer to prove that the defendant accepted the lease, entered into possession of the premises under it, and occupied the same during the full term named therein, and had never paid the rent.

It appeared from the lease that it was signed, sealed, and acknowledged by the plaintiffs, and recorded in the town clerk’s office in Jamaica, on the 20th day of August, 1862, but had never been signed or sealed by the defendant; and upon the objection of the defendant, it was excluded. The only question reserved was as to the correctness of this ruling

The general rule is, that covenant will lié only where the instrument is actually signed and sealed by the party, or by his authority. But it is claimed by the plaintiffs that there are exceptions to this rule, and that this case comes within one of them. In 1852, the case, Israel House v. Wm. Foster, was heard and decided by the supreme court in Washington county.

That was covenant, and it was alleged in the declaration that on the 7th day of March, 1841, the plaintiff, by a deed duly executed, conveyed to the defendant a certain farm, reserving to himself the fruit of the orchard for ten years, and that the defendant in and by said deed, covenanted to keep the orchard well fenced, and to preserve it from depredation by cattle, &c.; and it appeared that the defendant accepted the deed, and possessed and held under it. The plea was non est factum, and the deed when produced in evidence appeared to have been signed and sealed by the plaintiff only. The court held that it was not, in legal contemplation, the deed of the defendant, and that covenant would not lie.

This case has never been reported, but I have the manuscript pf the opinion delivered by Judge Royce, and have been thus *422particular in stating its facts, for the reason that it seems to me that there is such an analogy between that case and the one under consideration that we cannot reverse the ruling in this, without virtually overruling that. But, if this is to be regarded as still an open question, wc are unable to find that the plaintiffs have brought themselves within any recognized exception to the rule as above stated. That the defendant by accepting the lease and holding under it, incurred an obligation to perform the acts therein, stipulated to be performed for the lessor’s beuefit, caunot be disputed. But did he covenant to perform them ? Much of the contusion to bo found in the books upon this subject, is, in my judgment, attributable to the loose manner in which the proposition is stated, and the apparent neglect in examining the authorities from which it is derived. The cases cited in the English books as authorities for the rule claimed by the plaintiffs, I think will all be found to have depended upon some custom, like the custom of London, where an action of covenant lay without a specialty. 22 Edw. 4, 2 a. Or, where the defendant derived title under a grant or patent from the crown. Brett v. Cumberland, Cro. Jac. 399, 521; Com. Dig. Covenant, A. 1; Vin. Abr. Covenant, A. 1.

The only case which I have been able to find in the English reports, which can be claimed as an authority for the extensiou of the rule beyond what is above indicated, is Burnett et als. v. Lynch, 5 B. & C. 589. In that case, the lessee by deed-poll, assigned his interest in the demised premises to A., subject to the payment of the rent and the performance of the covenants contained in the lease. A. took possession, and occupied the premises under the assignment, and before the expiration of the term, assigned to a third person. The lessor sued the lessee for breach of covenant committed during the time that A. continued assignee of the premises, and recovered damages against him. The lessee brought an action upon the case, founded in tort, against A., fox-having neglected to perform the covenants during the time he continued assignee, and the question was, whether the action would lie, and it was held that it would. Arbott, C. J., in the opinion says : “ I think an action of covenant is not maintainable, *423for an action of covenant is of a technical nature. It cannot be maintained, except against a person, who, by himself, or some other person acting in his behalf, has executed a deed under seal, or who (under some very peculiar circumstances, such as those mentioned in Co. Lit. 231 a) has agreed by deed to do a certain thing.” It will be seen by reference to the Year Boole, 38 Edw. 3, 8, a, from which the note in Co. Lit. is extracted, that the form of action in that case was debt, and as applicable to that form of action, there is no doubt that it is sound law. But the error has been, wherever this authority has been cited, in a misapprehension of the form of action.

In Hinsdale v. Humphrey, 15 Conn. 433, it was held that an action of covenant would not lie against a lessee, or his assignees, for rent under a lease sealed by the lessor only, and that the acceptance of such a lease by the lessee, is not such an assent to the stipulations contained therein as to make it his deed; and the same doctrine was held in a well considered case reported in the 7th Ohio; and in Goodwin v. Gilbert, 9 Mass. 510, and in Gale v. Nixon, 6 Cow. 445, the court says that a recognition of the contract, though in writing and under seal, will not make it a covenant. We have seen but one American case where a contrary doctrine has been hell, and that is Finley v. Simpson, 2 Zabriskie, 311. So that, upon principle and authority, we think the ruling was right, and the judgment is affirmed.

Peck, J., dissenting.