Raymond v. Raymond

64 Mass. 134 | Mass. | 1852

Dewey, J.

The note offered in evidence to maintain this action, on the face of it, is of such a character as primd facie entitles the plaintiff to enforce the payment of it, in a suit at law. The defendant seeks to avoid this liability by showing that the consideration of the note was the receipt from the plaintiff of a deed purporting to convey certain real estate, bui which in fact, as the defendant insists, conveyed no title to him. The form of this deed was that the plaintiff “ granted gave, remised and released, and forever quitclaimed,” a certain undivided half of certain premises, and with a covenant “ that he had good right to sell and convey the same, and that he would warrant and defend the same premises against all persons claiming by, through, or under him.” This deed is somewhat peculiar in its form, but, as we suppose, easily settled, as to the proper construction to be given to the covenants contained therein. As to the first of these covenants that he had good right to sell and convey the same,” it must not be confounded with a covenant sometimes found in conveyances, “ that the grantor has a good indefeasible title to the same.” The covenants so usual in our deeds, that the grantor is “ seised of the premises, and that he has good right to sell and convey the same,” have long since had a judicial construction in this commonwealth. These covenants do not express or imply a warranty of any absolute title; they relate to the actual seisin of the grantor, and that he has such possession of the premises, as that he may execute a deed thereof. This covenant of a right to convey is synonymous with the covenant of seisin. The actual seisin of the grantor will support both of these covenants, irrespective of his having a good indefeasible title. Marston v. Hobbs, 2 Mass. 437; Bickford v. Page, 2 Mass. 455; Bearce v. Jackson, 4 Mass. 408; Slater v. Rawson, 6 Met. 444.

The facts offered to be shown by the plaintiff of the actual possession of the premises by the grantor at the time of execution of his deed, and for several years previous of all the premises but the saw-mill, and that upon the execution of the deed, the grantor surrendered his possession to the grantee who thereupon entered, and has continued his possession undisturbed to the present day, taking the profits thereof, would be sufficient to prevent the defendant setting up a breach of the covenant of the right to convey, to defeat a recovery on the note given by the defendant.

The other covenant, that the grantor “ would warrant and defend against all persons claiming by, through, or under him,” is of no greater effect than to warrant against title acquired through the grantor. It falls short of the general covenant of warranty, and is not a covenant to warrant against a title held by others derived from other independent sources, and not through the grantor. If however, it were otherwise, and this could be treated as a general covenant of warranty, it would not aid the defence to the note. On the contrary, if this was a general warranty, the subsequently acquired title by the plaintiff of the outstanding estate in Nathan Raymond, senior, would enure to the defendant under the estoppel of the warranty, and so avoid all objections to the consideration of the note.

But it is a more limited covenant, and it does not appear that there has been any breach of it by reason of any outstanding title derived by, through, or under the plaintiff.

But it is said, that there was an outstanding mortgage made by one Plympton Barnes to Nathan Raymond, senior, of a prior date to plaintiff’s title, and so the defendant, by reason of that title, may not always enjoy the estate he supposed he purchased, and that which plaintiff ought in equity to assure to him. The case as stated, shows that the defendant knew of the existence of that mortgage when he gave the note and received his deed, and was content to take the parol promise of the plaintiff to pay the notes secured thereby, and discharge the mortgage. But the defendant neglected to guard against it, in the covenant in the deed of the plaintiff He took a deed with covenants of a very limited character, and having thus taken certain express covenants of his vendor, he must be restricted to them, and cannot now engraft upon them the more extended engagement found in a verbal promise made at the time of executing the deed. A deed with a covenant of warranty against all persons claiming by, through, or under the grantor, cannot be thus extended to a general covenant of warranty against all persons. The misfortune of the defendant is, that he did not require more full covenants of warranty.

The deed which the plaintiff, subsequently to his conveyance to the defendant, received from Nathan Raymond, senior, cannot affect the case. The title acquired by that deed, it is true, will not enure to the benefit of the defendant by way of estoppel, for want of a general covenant of warranty.

It is quite equitable and proper, certainly, that the plaintiff should, upon the defendant’s suffering judgment upon the note, do what, upon the argument of the case, he says he has been ready ever to do, to release to the defendant all the title he acquired by the deed of Nathan Raymond, senior, of date of 4th January, 1848, but that is a matter of arrangement between the parties.

As to the undivided half of the saw-mill, as to which a claim for damages might have existed, the defendant has had full compensation for that, by an indorsement on his note for that damage, of the sum of $233.67, if the plaintiff can show, as he offered on the trial to do, that the defendant assented to have that sum indorsed on the note in accordance with the award of the arbitrators.

We have not thought it necessary to consider further than this, any question as to the effect of the award of the referees upon the present action. Nor have we particularly considered the effect of the evidence proposed, having a tendency to show that Nathan Raymond, senior, received $150, towards payment of the debt secured by his mortgage at or about the time of giving the deed of the plaintiff to the defendant, and thus opened his mortgage for redemption, although it would otherwise have been foreclosed, and so there would be no outstanding title in a third person except as mortgagee, and one that the plaintiff might redeem. It is proper also to say that the case as to this point, and also as to the possession of Nathan Raymond, senior, under his mortgage, after entry for foreclosure, as presented in the former case of Nathan Raymond v. Abijah Raymond, 7 Cush. 605, presented a different state of facts from those now offered to be shown.

The result is, that the verdict for the defendant must be set aside and a new trial ordered. Exceptions sustained.