Lippett v. Kelley
46 Vt. 516
Vt.
1874
Check Treatment

The opinion of the court was delivered by

Royce, J.

It was conceded on trial, that the land in controversy was embraced in the deed from Oliver Warner to Jesse Lapham, of March 31,1888. In this deed the land was described by metes and bounds, and courses and distances, and no mention was made of its having been, or then being, in the occupation of any one, or of any water privilege belonging to the same On the 3d of December, 1849, Jesse Lapham' fexecuted a deed to one Joseph Lippett, of the following described land : “ All the right, title, interest, claim, and demand I have in and unto one other piece or pieces of land deeded to me by Oliver Warner, 31st day of March, 1838, upon which said Morrison formerly lived and occupied ; for more particular description, reference may be had to said deed from Oliver Warner to Jesse Lapham, together with all the water privileges and appurtenances therewith belonging to the same.” The plaintiff succeeded to all the title that Lippett acquired by this deed. The defendant, after introducing evidence tending to show that there never was, and never could be, any water privilege upon the piece of land in controversy, and that Mr. Morrison never lived upon it, and that he never had any occupation of it, except a temporary one of some part of it, and that there was another piece of land near by which was described in the aforesaid deed from Warner to Lapham, upon which Morrison did reside and occupy, and which had a water privilege connected therewith,- — -claimed the right to go to the jury upon the question as to whether the land in dispute was included in the deed to Lippett.

*523In construing deeds, where another deed is referred to for a description of the premises conveyed, the deed referred to is regarded as of the same effect as if it was copied into the deed itself; and whatever is described in it, will pass. 2 Washb. Real Prop. 638; Allen v. Bates, 6 Pick. 460 ; Foss v. Crisp, 20 Pick. 121. Under this rule, the two descriptions should be considered together, upon the question of construction. The description in the deed from Warner to Lapham, was by metes and bounds, and courses and distances, and if the words employed in this description sufficiently ascertain the premises intended to be conveyed, the addition of things false or mistaken, will not frustrate the grant. Broom. Leg. Max. 498.

In the case of a lease of a portion of a park, described as being in the occupation of S., and lying within certain specified abuttals, with all houses, &c., belonging thereto, and which are now in the occupation of S., — it was held that a house situated within the abuttals, but not in the occupation of S., would pass. Doe d. Smith v. Galloway, 5 B. & Ad. 43. The cases cited by defendant, of Mitchell et al. v. Stevens, 1 Aik. 16, and Hodges v. Strong, 10 Vt. 446, lay down the rule that, whether or not particular premises are included in the description in a deed, is a question for the jury. Such an issue cannot be determined by an inspection of the deeds, and hence it must be treated and tried like any other disputed question of fact. Here the question whether the premises described in the plaintiff’s declaration, were the same premises described in the deeds under which she claimed title¿ depended upon the construction to be given to those deeds; and the construction of deeds, and their legal effect, is always a question of law. Strong v. Hodges, 10 Vt. 247; Exrs. of Stevens v. Hollister, 18 Vt. 294.

In England, the right to the land only, is determined in the action of ejectment; and when the right of the claimant has been established, he has his action of trespass to recover for the mesne profits; and in that action, the damages are not limited to the profits that might have been made from the úse of the premises recovered; but the owner may be compensated for such consequential damages as have resulted from the acts of the defendant while *524in the wrongful occupation of the premises. Adams Eject. 337. In Goodale v. Tombs, 3 Wils. 118, Gould, J., says: “ I have known four times the value of the mesne profits given by a jury in this sort of action of trespass; if it were not to be so, sometimes complete justice could'not be done to the party injured;” and where the costs in the ejectment suit have- been taxed, the plaintiff may recover them with the mesne profits, as damages. Doe v. Davis, 1 Esp. 358; Aslin v. Parkin, 2 Burr. 665, 668. But to entitle the party to recover such special damages, they must be alleged in the declaration. 2 Steph. N. P. 1494 ; Dunn v. Large, 3 Doug. 335.

Our statute provides that in every action of ejectment, if judgment be rendered for the plaintiff, he shall recover as well his damages as the seisin and possession of the premises. The intention of the legislature seems to have been, to avoid circuity of action, and to make the remedy of the plaintiff in ejectment, co-extensive with the remedy given by the action of trespass for mesne profits in England. As far as mesne profits are concerned, this court has given that construction to our statute, and held that they could only be recovered in the action of ejectment. Strong v. Garfield, 10 Vt. 502; Walker v. Hitchcock, 19 Vt. 634. And in the case last cited, it was determined that a recovery for the mesne profits in ejectment, was not a bar to an action of trespass quare clausum for entering upon the same premises, and injuring and destroying-property attached thereto. The form of the declaration in the ejectment suit between the parties in that case, was the one given by statute, and the court say that under such a declaration, the plaintiff should not be allowed to give in evidence such acts of trespass as arose from the wanton misconduct of the defendant. But where claims for damages done to the premises by the defendant while in wrongful possession, are properly alleged in the declaration, we think they may be recovered for in the action of ejectment. It can be no hardship to a defendant to have such claims thus adjudicated, for he has the same notice, and is entitled to the same defences, as if a separate suit was brought to recover them. This view harmonizes with what has been said as to the intent of the statute; so there was no error in the ruling *525of the court upon the subject of damages, if the amendment to the declaration was pz’operly permitted to be made. It being admitted that the damages claimed by the amendment can be recovered in this action, the rule adopted'in Carpenter v. Gookin, 2 Vt. 495, and which has since been followed, does not apply. It neither changed the form of action, nor introduced a new cause of action. The cause of action remained the same after the amendment as before, and the granting the motion rested in the discretion of the court, and is not reviewable here. If it was reviewable, the abundant and commendable caution of the court, precludes all claim that its discretion was improperly exercised. There was no error in the charge as to the time covered by the declaration for which the jury might assess damages. The general rule in an action for mesne profits is, that the plaintiff may recover the annual value of the land from the time of the accruing of his title. Sedgw. Dam. 128. And the time stated, as far as it refers to the claims for damage alleged in the amendment, is not material.

Judgment affirmed.