24 Mo. App. 199 | Mo. Ct. App. | 1887
From the instructions given by the court, and those refused, it is manifest that the court tried the case on the theory' that the stipulation contained in the deed from plaintiff to the railroad company was in the nature of a covenant running with the laud, which gave the plaintiff a right of action over against the defendant, a subsequent purchaser. The defendant’s instructions, refused, maintained the converse of this proposition.
There are two aspects of this case in which it may be considered. First, in reference to the effect of the stipulation contained in the deed of plaintiff to the railroad company as to that part of the ditch in section 34, and second, its effect in reference to that portion in section 35. Undoubtedly, had the plaintiff covenanted in his deed to maintain the ditch in section 34, for the use of the railroad company, it would have. been an express covenant running with the land, which any subsequent purchaser, under the first grantee, could have enforced against the first grantor. But as the stipulation sought to be enforced in this action is against the
It is somewhat difficult for the mind to reconcile the" conclusion reached in Parish v. Whitney, with the language of Shaw, C. J., in Newell v. Hill (2 Met. 180): “A deed poll, when accepted by the grantee, becomes-the mutual act of the parties, and a stipulation on the part of the grantee, though it cannot be declared upon as his deed, yet, by the force of his acceptance, is a valid contract on his part, by which a right may be re
In Kellogg v. Robinson (supra), the stipulation in a deed poll required the grantee to maintain a partition fence between the demised premises and the other land of the grantor. It was held to be a covenant on the part of the grantee running with the land. Phelps, J., observed that it (the stipulation) concerns the land, and is not collateral, is not to be questioned. It is not to be supposed that the parties intended Smith, the grantee, should be bound after parting with the land, nor that the obligation to maintain the fence should cease with a transfer of the estate. Besides, where is the distinction between a covenant to repair houses (the case put by Coke), and a covenant to maintain the fences % Where the covenant runs in perpeluam there can be no distinction.” The stipulation to maintain the ditch is the expressed consideration and condition on which the conveyance was made ; and as between the original parties to the deed an action for a breach of this compact would certainly lie. The form of the declaration in such action would be so akin to that for a breach of a covenant that the difference is so technical as to show, under our system of practice, that there is no substantial difference in the quality of the obligation.
In Burbank v. Pillsbury (supra), the position is defended with much ability and authority that such a stipulation is a covenant running with the land. It is held that the case is in no wise distinguishable, in principle, from a devisee taking property under a devise subject to a burden imposed in favor of a third party ; which Shaw, C. J., in Pike v. Brown (7 Cush. 135), expressly asserts, “stands on the same footing with a deed poll.”
In VanRensseler v. Hays (19 N. Y. 68), an annual rent reserved in the deed was held to be a covenant running with the land. And in Atlantic Dock Company v. Louitt (50 Barb. 135), the deed poll contained a stip
In Norfleet v. Cromwell (64 N. C. 1), it was held •that an obligation imposed in a deed poll on the grantee to keep in repair a canal for the purpose of drainage to other lands of the grantor was a covenant running with the land. The court say: “The rights and obligations which they created were to be permanently attached to their respective lands ; and, to be of any value, they must be. Their purpose would be defeated by holding that the obligation rested only in personal covenant, and were subject to be partially extinguished by a sale, or the death of any of the parties.” These and other authorities commend themselves to my approval. So far, therefore, as any damages arising from the breach •of the obligation imposed in the deed of plaintiff to the railroad company can be traced to its failure to maintain the ditch in section 34, he is clearly entitled to maintain this action.
II. But, as it is apparent from the instructions and the evidence that the verdict is dependent as well upon the right of the plaintiff to maintain the action for damages resulting from the defendant’s failure to maintain that portion of the ditch in section 35, we are brought to encounter another question of greater embarrassment, and that is, whether the stipulation contained in the deed of plaintiff can be held to bind a subsequent purchaser of the land in section 35, through which the ditch runs ? The contention of appellant is that, to maintain the action for breach of covenant
New questions' arise more perplexing to the judicial mind than the practical application of these rules in practice. As said by that eminent judge, Cowan, in Norman v. Wells (17 Wend. 152): “ There are certainly cases which seem startled at the comprehensive rules concerning assignable covenants, and which, therefore, seek to limit the number; and there are others which enable us still more clearly to see the legal portion be
As each case must, to some extent, be controlled, by its own peculiar-facts, it is altogether important to a. right determination of this case to comprehend its exact facts.
It is assumed by appellant’s counsel that, as the deed from plaintiff to Christie was not put to record, the purchaser from the first grantee therein is not affected with notice of the reservation made of the ditch. This would, ordinarily, be correct, where the defendant, in claiming the title by adverse possession, or under a chain of title not requiring him to have recourse for its establishment to the existence of an undisclosed deed. But does it apply to the state of facts at bar, where the defendant holds title only through the fact of a deed having been made, which he is presumed to have in possession, or to have seen, or made inquiry about, when he purchased % It is a familiar rule of equity that a purchaser is bound to take notice of all liens and incumbrances shown to exist by his vendor’s title deeds. McRimmon v. Martin, 14 Texas, 318; Tiernan v. Thurman, 14 B. Mon. (Ky.) 277; Major v. Buckley, 51 Mo. 227. In Daughaday v. Paine (6 Minn. 452), it is said : “ It is contrary to reason and good sense that a party should be excused from knowing the contents, and the whole contents, of his title deeds. The purchaser has possession of these title deeds, to all intents and purposes, as fully as if they were delivered into his own hands.” And in Johnson v. Gwathmey (4 Litt. (Ky.) 321), it is held that the effect is-the same if the deeds are not recorded at all, if the party tobe affected by notice claims, and cannot make title without them.” This holding is recognized by our Supreme Court in Orrick v. Dunham (79 Mo. 178).
I take it that the reasonable construction to be applied to this language, employed by an unprofessional man, taken in connection with the supreme importance of this part of the -ditch to the grantor, and the reason for the reservation is, that he excepted from the operation of the deed the land including'tile ditch. So that, when plaintiff conveyed to the railroad company he was the owner of the entire ditch in sections 34 and 35. Nor is the language of the stipulation contained in the deed from plaintiff to the railroad company subject to the construction sought to be placed upon it by appellant, that the duty of maintaining the ditch was limited to that portion of it in section 34. The grantee was to “maintain the present ditch, in order to drain that portion of his (plaintiff ’ s) land north of bank in section 34”, the obvious meaning and intent of which was, to impose upon the grantee, the duty and burden of maintaining the ditch, as it then existed,- so as to accomplish the beneficial object of its construction, which was to drain and protect the plaintiff’s farm in section 34. How could that be accomplished, if the ditch in its entire length to the lake was not maintained ? The engineer of thé railroad company was upon the ground and made an observation of the office the flume and water-gate performed at the bank, or MU, in section 35. It was designed to prevent the flow of water from the lake up through this flume, whereby plaintiff’s land in section 34 was liable to be flooded and ruined. The language of the stipulation was apt enough to apply to the whole ditch, especially so when plaintiff owned that portion of It in section 35, and was contracting concerning something over- which he had control. So we' are brought face to face with -the question, ■ did that portion' of the-
Cowan, J., in Norman v. Wells (supra), construes the term collateral to mean : “ Such a covenant in the-lease as appears to be foreign from the demise, not touching the land or its value, or the value of the reservation, or of the term, or going to fix the amount of the rent; in short, a distinct matter which the parties have put in by the by, as they may do in respect to a horse'or a cow, or a distinct farm, or some other matter, which.,at least, does not appear necessarily to influence the demise.” Now, as already stated that portion of the ditch in section 35 was so allied to that in section 34 as to make its preservation an absolute necessity to the plain-; tiff. The obligation imposed by the deed to maintain-the ditch merely in section 34 would have been utterly fruitless to the plaintiff without a like safeguard as to-that in section 35. It affected the sale of the land in. section 34, and entered into the consideration as a condition thereof. It was so affixed to the thing demised-as; to make it inseparable.
Lord Ch. J. Wilmot, in Bailey v. Wells (3 Wils. 25), in commenting on the instance of the house to be built on other land, or to pay a collateral sum of money, put by Coke in the Spencer case, observed : “The reason why the assignees, though named, are not bound, is because the thing covenanted to be done has not the least reference to the thing demised. It is a substantive independent agreement, not qioochcm modo, annexed or’ appurtenant to the thing leased.” And he regards that ■as a dependent covenant which requires something to be-•done or omitted, “ which respects the thing on which it
In Burbank v. Pillsbury (supra), the deed poll conveyed certain premises, which were bounded on three' sides by other lands of the grantor. The stipulation in the deed required the grantee, his heirs, and assigns, to-make and maintain a fence around.all of the premises, free from costs and expense to the grantor. This, it will be observed, bound the grantee to perform a service^ as a burden, on other lands of the grantor than those conveyed. Yet it was held to touch and be appurtenant to-the thing demised, and constituted a covenant running; with the land.
In Woolisroff v. Norton (15 Wis. 198), the deed conveying a mill lot and a given number of square inches of water-power, contained a stipulation that the grantee should contribute a ratable share toward the expenses of maintaining the dam and race-way, proportionable to the number of square inches of water owned and used by him. Although the thing to be done by the grantee affected premises outside of the thing demised, it was held to be a covenant running with the land, and supported an action against a subsequent purchaser for damages, as for breach of contract.
Tire remark of Lord Cottingham, in Fulk v. Maxhay (2 Phillips Ch. 774), respecting the case of a grant of apiece of land used as a pleasure ground, and containing-a stipulation that the grantee should maintain it in its present condition, and also build a fence, separating it from other lands of the grantor, and the attempt to escape this obligation by conveying to a third party, is most pertinent to the facts of this case : “If that were so, it would be impossible for one owner of land to sell part of it, without incurring the risk of rendering what tie retains worthless.”
The case of Norfleet v. Cromwell (64 N. C. 1), also presents a striking illustration of the application of the' rule in question, where the thing to be done by the-
The possible objection, in view of remarks made in ■some of the ancient authorities, that this position may be obnoxious, as creating a perpetuity,¡is, in my opinion, of little force, because there was, and is, in being, a person capable of releasing the incumbrance.
III. These being the controlling and conclusive questions arising on the record, and the verdict on the unquestioned facts, being for the right party, it is unnecessary to notice other minor questions raised by counsel in their brief.
The other judges concurring, it follows, as the result of this opinion, that the judgment of the circuit court should be affirmed. It is so ordered.