Knapp v. Town of Marlboro, 29 Vt. 282

29 Vt. 282 | Vt. | 1857

The opinion of the court was delivered by

Isham, J.

The declaration in this case is in covenant broken, in which it is averred that on the 6th of April, 1795, the town of Marlboro executed a perpetual lease to Jonathan Rising of lot number fifty-seven in that town, and therein covenanted, on the payment of a stipulated rent, for the quiet enjoyment of the premises without interruption or molestation. A part of the premises, it is averred, has been transferred to the plaintiff by regular assignments, and from which he complains he has been evicted by an elder and better title.

There is no express covenant for quiet enjoyment contained in the lease, but the doctrine was not questioned in the argument of the case that such a covenant will be implied from the language of the instrument, that the lessee, or any other person who may personate or represent Mm, shall hold, use, occupy, possess and enjoy the premises without interruption; Hays v. Bickerstaff, 2 Mod. 35. It is immaterial whether the covenant is express or implied. In either case the words amount to a general covenant for quiet enjoyment during the term; Ellis v. Welch, 6 Mass. 246. The provisions in the lease are general, and were obviously intended to secure to the lessee the use and occupancy of the premises during the term, against all lawful interruptions to any portion of the premises, whether on the part of third persons or from the lessors and those claiming under the town. There is no limitation to the quiet enjoyment of the premises under the lease, provided the stipulated rent is paid. In doubtful cases the rule of construction is more favorable for the lessee, and against the lessor; and unless it clearly appears that the covenant was intended to be confined to interruptions on the part of the lessor, it will be extended to all lawful interruptions by any party, which defeats the title of the lessee to the premises leased.

The important question in the case arises, whether the plaintiff has been dispossessed of the premises, or any portion of them, which are described in the lease, and whether that dispossession was effected by a paramount title. In determining that question it becomes necessary to definitely ascertain the boundaries of the land included in the lease as well as the location of the premises from which the plaintiff claims he has been dispossessed. If the dispossession was of land included in the lease the action is well brought, but if otherwise the action clearly cannot be sustained.

The town of Marlboro was chartered in 1751, about forty-four years previous to the execution of the lease to Jonathan Rising. The plan of the town shows an allotment of lot number fifty-seven in the north-west corner of the town, and a reservation of that right for the use of schools. The premises leased are described as being part of lot number fifty-seven, on the north side of said right, and bounded north on the north line of said right, east on the east line of said right, and west on the west line of said right, and to extend so far south as to contain two hundred acres with a line parallel with the north line. There is no uncertainty or ambiguity in this description. The north line of the town of Marlboro, as it was chartered, is made the north line of the premises leased. The charter of the town with its boundaries, as well as the allotment of this right of land for schools was a matter of record, and by regular surveys was susceptible of precise and definite location. It is also to be observed that the north line of Marlboro is a permanent and public monument, and one which controls lines, courses and distances, and when the premises leased are bounded by such a monument, that boundary cannot be varied by the acts of the parties, nor by the introduction of parol testimony showing that the parties designated or recognized a different line, or that the lessee was directed to occupy beyond it. The operation of the covenant is confined to the premises and the boundaries mentioned in the lease, and to show a breach-of that covenant those lines must be ascertained, and the premises of ■which the plaintiff has been dispossessed must be shown to be within it. The case of Cook v. Babcock, 7 Cushing 526, is very similar to this case on this question. In that case land had been conveyed, bounded “ north on the line of Blanford.” That line had been established by act of the legislature. It was held that the line so established was the northern boundary of the land, and that parol evidence was inadmissible, to show that previous to the establishment of that line the line of Blanford was understood to be farther north, and defined by a line of marked trees, and that the parties intended to convey the land to the line of marked trees. The legal effect of that deed could not be changed by parol testimony showing that the north line of the town was different from that which had been established. The north line of Marlboro in this case was equally certain and established, and as equally free from ambiguity; and when these premises were bounded by that line, the true line of the town as established by the charter is conclusive upon the- parties, and determines the land included in the lease; King v. Little, 1 Cushing 436. This subject and the authorities which have been referred to, have been recently before this court in a case frpm the county of Grand Isle, and this doctrine was fully recognized; Fletcher v. Phelps, 28 Vt. 257. In that case it was held that such lines were permanent monuments, and when referred to in a deed could not be varied or controlled by parol testimony showing a different line. Two things are rendered certain by this lease: the whole of the land was in the town of Marlboro, and was bounded on the north by the north line of that town. That being the extent of the lease, the inquiry arises, has the plaintiff shown that he was evicted from any land in that town which is included in the lease. On this point the case seems fatally defective for the plaintiff. Assuming for the purposes of this case that the recovery in the case of Gil-lett against the plaintiff was founded upon an elder title, and that it is conclusive not only on the parties, but also upon the town of Marlboro; still, the fact exists in the case that the dispossession was of land north of the line of Marlboro and within the town of Dover. The plaintiff, therefore, has not been dispossessed of any portion of the premises included in the lease from the town of Marlboro to Jonathan Rising, nor of premises to which the covenant, the breach of which is complained of, can attach. The jury should have been instructed agreeably to the requests on the part of the defendant, that the lease conveyed land only in Marlboro, and that the dispossession being of land in Dover, the plaintiff had not been disturbed in the enjoyment of land conveyed by the lease. The testimony of Higley, and of the acts of the selectmen of Marlboro, was improperly admitted to enlarge the provisions of'that lease, or to include land not being in that town. The selectmen by no act of their own can extend the liability of the town in that manner. Whatever they may have done in authorizing the possession of land beyond the true north line of Marlboro as fixed by the charter must be regarded as private acts, and not binding on the town. Without referring to other questions which were made in the argument of the case, we think this objection is fatal to the action.

The judgment of the county court is reversed, and the case remanded.