23 F. Cas. 964 | U.S. Circuit Court for the District of New Jersey | 1811
The opinions delivered on the former hearing, were merely on the operation of the covenant of seizin, in which the judges were divided. 1 then thought, and still think, that at ■ common law, the covenant of seizin applies to the possession, as well as to the title; and that, if at the time the covenant is entered into, the grantor is disseized, the covenant is broken, how good soever his title may be. The argument has now taken a wider range, and, it is contended, on the one side, and denied on the other; that a deed by the rightful owner puts an end to the disseizin, if it existed at the time; provided his entry was not taken away, and in fact restores the possession. That, in short, it is no objection to the validity of a conveyance, that the grantor is out of possession. Upon these points 1 do not wish, unless there were necessity, to give an opinion; and in this case there is none. But I would observe, that if the plaintiff’s counsel be right, still if the plaintiff could, as soon as he obtained his deed, have brought ejectments, on the joint demise of himself and Perry, as, in one or two instances he did, and recovered; and could have effectually prevented the commission of waste; if the judgments in ejectment would have been conclusive of the right to recover mesne profits, from the time of the demise laid, as they certainly would; how has he sustained an injury, which it was not in his power to have prevented? And, if he might have prevented it, whatever might be his strict legal rights, it is fair to ask where is his equity ?
But, the court is of opinion, that upon the strict law of the case, the plaintiff cannot recover; because, if Perry was disseized, or held out adversely, of any part of the land, it did not pass by the deed, and consequently the covenant could not be broken. If, by the laws and usages of this state, or otherwise, he was not disseized, then the covenant is not broken. The words which describe the land intended to be conveyed, are, “all the real estate lying in, &e., whereof Perry and Hayes were seized on the 4th July, 1776, or at any time since; and whereof the said Perry is now seized.” It is contended by the counsel for the complainant, that the word “and” should be construed a-disjunctive; because, if the seizin of Perry and Hayes is at last to resolve itself into the seizin of Perry at the time the deed is made, the previous description of the land is rendered useless, and made to stipulate no more than that he is seized of all that he is seized of. It is very true that the word “and,” by restraining the preceding words, deprives them of their effect; but, this of itself is no reason for the alteration in the language which is contended for, if a useful meaning can be given to the words as they stand. Surplusage and tautology are usual in deeds. The preceding words were intended to describe the seizin of Hayes and Perry; the latter, the seizin of Perry. It is unreasonable to suppose, that he contemplated selling land of which he was not seized, or that the plaintiff contemplated buying it; for, upon the doctrine of the common law, contended for on bis behalf, the deed would have been void, as to the land of which he was not seized. Much less likely is it, that Perry should mean to use a language that implied a possibility of passing land of which he was not seized; and would super-add a covenant which was broken as soon as entered into. His situation, — a stranger to the land, to the various accidents which might have befallen it, from 1771, when he bought it; to the title of Hayes, under whom he claimed one half, and who might in his life time have sold or been disseized of the whole or a part of it, — all these circumstances were sufficient to induce caution m a prudent man: and if his intention was to convey nothing, but what he might legally part with, he could not have used more appropriate words to express such intention; and the court would go farther than would be warranted, in changing the language which the parties have used, at the risk of defeating that intention. As to the effect of the covenant in the grant, as it is expressed; the meaning is, that the lands of which Perry was seized, and which he thereby conveyed, were held by an absolute title in fee, clear of incumbrances, &c. In deeds, where the seizin forms no part of the description of the land granted, (which it does in this case,) the covenant goes to the present seizin, as well as to the title. In such a deed as this, it goes to the title, only; and in this respect the covenant is sensible and useful. Again, it is contended that the word “and” is merely an affirmation that Perry was then seized of the lands, of which Perry and Hayes had been seized on
But, if this point were in favour of the plaintiff, then it is the opinion of the court, that he would not be entitled to the aid of this court, but on the terms of accounting for the excess in the quantity of land, over 2,600 ■ acres. The description of the land sold, is either in the recital, or is expressed by the words which have just been examined. The grant is not of the land mentioned in the recital, but of all the lands in a particular county, whereof Perry and Hayes were seized, and of which Perry was then seized. If the latter words meant only an averment, that he was seized of all the lands whereof Perry and Hayes were seized, and do not restrain the expressions as to the seizin of Perry and Hayes, then the description of the land conveyed in the granting part of the deed, and in the recital, are precisely the same; for the latter describes only lands of which Perry and Hayes were seized. But then an additional description is given, viz, that those lands contained about 2,600 acres. Now this latter description qualifies the former, and if not rendered nugatory by the words in the granting part, “and whereof Perry was then seized,” they ought, in construing this deed, to be taken into consideration. It seems to the court, that when the land sold, is said to contain about so many acres, both the grantor and grantee consider these words as a representation of the quantity, which the grantor expects to sell, and the grantee to purchase. The words “more or less,” are intended to cover a reasonable excess or deficit. If the difference between the real and the represented quantity be very great, both parties act obviously under a mistake, which it would be the duty of a court of equity to correct; more especially against him who asks the aid of that court. The consequence of this is, that if we are to direct an issue of quantum damnificatus, for breach of the covenants in the deed, we should also direct that the defendant on that issue, should be at liberty to give in evidence, in diminution, or opposition to the damages, the value of land over and above the quantity mentioned in the deed; which would probably be destructive of the plaintiff’s claim. Upon the whole, we are of opinion, that the bill ought to be dismissed with costs.
