Keith v. Day, 15 Vt. 660

Keith v. Day

15 Vt. 660 | Vt. | 1843

*670The opinion of the court was delivered by

Redeield J.

The first question made in the caséis, whether the covenants in defendant’s deed, of general warranty of title, are to be considered as a covenant against the claim of the University for rent. The terms of the covenant are to warrant and defend the premises against the claims of all persons. Now it is not very obvious how the fact that this land was college land, subject to a rent to be paid annually, should affect the construction of this covenant so as to except that claim from its operation. The fact that both parties knew of this claim, and that the one insisted upon, and the other gave, a general covenant of warranty against all claims, without exception, would seem the best of all reasons why that claim, which was in the minds of the contracting parties, at the time of entering into the covenant, and which was clearly within the terms used, “ all claims,” should not, by any construction, be taken out of its operation.

So too the subsequent conduct of the parties to a deed, or of their grantees and assignees, may be an important ground of fixing the signification of equivocal terms used in the deed ; but where the terms used are explicit, and unequivocal, no such ground of construction can ever be resorted to, at least in a court of law. If such facts exist as to show a mistake of the parties in reducing their contract to writing, the party injured is not without remedy.

2. The only remaining question is in regard to the damages. As we cannot leave the covenant still open, to compensate plaintiff, or his assignees, for future claims of rent, but one recovery must be considered a full satisfaction, it is plain, that the recovery of the rent which had accrued at the time of the eviction, would be no adequate compensation to the party evicted, as the covenant runs against all claims, and for their consequences. The covenantor then should either keep down the rent, or if he suffers it to run behind, and the grantee or assignee is evicted, the rule of damages will be the same as in other cases, i. e. the value of the land at the time of eviction.

3. A question was made at the bar, but not very fully discussed, how far an intermediate grantee could recover for a breach of the covenants of warranty, while the premises were héld by his grantee or a remote assignee. The court *671intend to adhere to the rule, as laid down in Williams v. Wetherbee, 1 Aiken, on the 239th page, .by Royce J., which would seem to be an approval of the rule, as laid down by Parsons, C. J. in Bickford v. Page, 2 Mass, on the 460th page : “ it is a geueral rule, that when a feoffment or demise is made of land, if the feoffee or lessee assign the land before the covenants are broken, and afterwards they are broken, the assignee only can bring an action of covenant to recover damages, unless the nature of the assignment be such that the assignor is holden to indemnify the assignee against a breach of the covenants by the feoffor or lessor.” This seems to be the principle promulgated in 5 Cow. 137, and in 4 Kent’s Com. 471, 472, n. b. This would seem to be the present rule upon the subject. It is true, some of the cases go further, and hold, that an intermediate grantee cannot sue upon covenants, running with the land, until he has been called upon by the last assignee, in whom the right of action primarily vests, and has made compensation. Booth v. Starr, 1 Conn. 244. And one might infer as much from the stress laid upon that circumstance by Chancellor Kent, in the note above alluded to, and the frequent reference of this subject to the analogy of successive indorsers of a note or bill. But it is not necessary to pass upon that question, as, in the present case, there is clearly no obligation resting upon the plaintiff in this case to indemnify those to whom he had conveyed before the eviction, and if he should now be permitted to recover the value of the land conveyed to them and thus extinguish the covenant, they must be without redress. But in the present case, it would seem that the plaintiff conveyed a portion of the land after the eviction. For that portion, and that which he still retains, he must recover the value, but nothing for that which he had conveyed before breach, unless he was bound to indemnify his grantee. The covenant, after the breach by eviction, became a mere chose in action, and not assignable. And as the title was gone by the eviction, it is not readily perceived how a conveyance subsequently to the breach could affect the rule of damages.

Judgment reversed and cause remanded.