| Vt. | Feb 15, 1859
Upon a former hearing of this case it was decided that the lease from Marlboro to Rising contained a covenant of quiet enjoyment; that by the terms of the lease the covenant applied only to land lying in the town of Marlboro, and could not be extended by parol evidence to inelude land lying north of the north line of Marlboro, in Dover; and that the covenant ran with the land, and inured to the benefit of the plaintiff.
Counsel do not seem to differ as to the general principles of law applicable to the proof of a breaeh of this covenant, viz: that the covenantee must be evicted from some portion of the land, by one making a lawful claim by a better title existiug at the time the covenant was made; Rawle on Covenants 147, and cases there cited.
To show an eviction from the land the plaintiff introduced &. record of a recovery in ejectment by Gillett against him. This was the proper legal evidence that such a judgment was rendered. The description in the record of the judgment of‘the land recovered by Gillett, apparently applies to land in Dover, not in Marlboro. The premises recovered are bounded south by the north line of Marlboro, and so seem to adjoin, but not to cover, the land described in the lease to Rising. To show that this land so recovered really included a part of the land covered by the covenant, the plaintiff offered to show that the true north line of Marlboro, and of the school right, was twelve rods north of the line which is called in the record of the judgment the north line of Marlboro; that in point of fact, the land described in the judgment did include a part of the land conveyed by the lease to
Parol evidence must necessarily be admitted to apply the description in the record to the land; and so applying the description, it is not controverted but that the land described in the record is a part of the land described in the lease, provided the north line of Marlboro is where the plaintiff claims it to be.
He shows, therefore, an eviction from land covered by his lease, provided the lease extends as far north as the line claimed by him to be the true north line of Marlboro.
To show this fact necessary for a recovery, he offered this parol evidence. It was excluded on the ground that it was contradicted by the record, and that the plaintiff was concluded by the record.
The decision of the county eourt must rest upon the ground that the judgment in that case is conclusive as to where the north line of Marlboro is, not only between the parties to that suit, but also between Knapp and the-town of Marlboro.
A record of a judgment is conclusive as to all persons to prove the fact that such a judgment was rendered; but when used to prove matters of fact recited in the judgment, it is conclusive only as to parties and privies. In the suit Gillett v. Knapp, the town of Marlboro was not a party, was not vouched in to defend, was not a privy in the law, and is not concluded by the judgment. This is too plain to require argument or cite authority. It is the common case of a warrantor or covenantor, who, not being vouched in to defend, has no control over, and is not bound by$ the proceedings in the suit. Not being concluded by the record, the defendant has not the right to insist that the record shall conclude the plaintiff, for both must be bound or neither. We think, therefore, the court below erred in holding that the judgment was conclusive of the fact that the land recovered was in Dover, and that parol evidence was not admissible to show that it was in Marlboro.
Of course the plaintiff must have failed in the suit, if he had ready in court all the other evidence that was requisite to maintain every other point in his case. He was thereby obliged to submit to a judgment against him. Whether he could have proved that the eviction was by one claiming under an elder and better title, we can not now determine, for it was idle for him to offer such proof if he had it.
Nor ought we to presume, even it did appear that all the evidence offered up to the time of this ruling failed wholly to show eviction by such lawful and better title, that the plaintiff might not have had evidence to offer which would wholly have changed the aspect of the case on that point. It is obvious that a state of facts might have existed showing such an eviction, and if so, we can not say judicially but that the plaintiff might have proved it, and was precluded from so doing by this decision, and its necessary result in defeating the plaintiff’s recovery;
II. It is further claimed, by the defendant that if the testimony excluded by the court had been received, it would only have proved that the land from which he was evicted was in Marlboro, and therefore land to which he had a good title by his lease, and of which he might have had the quiet enjoyment but for his own negligence or wrong in suffering a recovery against him ; that to prove'it in Marlboro, proves the recovery not to have been by better title existing at the time the covenant was made, but to have been by a wrongful claim of .land in Marlboro under a title to land in Dover ; and therefore, that by necessary conclusion, the plaintiff on his own showing must have been cast in the suit.
This aspect of the case, as it now stands, presents a perplexing question, and may raise a serious, perhaps a fatal, objection to a final recovery by the plaintiff. But we are not prepared to say that it is obviously such a necessary and inevitable impediment to a recovery, as requires the court at this time to treat it as a bar to the action. The plaintiff has not had the opportunity to
Judgment reversed.
Knapp v. Marlboro, 29 Vt. 282" court="Vt." date_filed="1857-06-15" href="https://app.midpage.ai/document/knapp-v-town-of-marlboro-6576141?utm_source=webapp" opinion_id="6576141">29 Vt. 282.