58 Vt. 642 | Vt. | 1886
The opinion of the court was delivered by
The covenant to warrant and defend is a covenant running with the land and is assignable. The declaration declares upon a breach of this covenant in the
No copy of the second Shippee mortgage is before us, but
The fact that the land contained in the described boundaries was more than one hundred and forty acres cannot relieve the defendant estate; because when the boundaries designate the land with certainty such boundaries control the quantity although stated incorrectly in the deed. A statement of the number of acres, more or less, is mere matter of description and not an agreement or covenant on the part of the grantor. Beach v. Stearns, 1 Aik. 325; Powell v. Clark, 5 Mass. 355.
The defence of the Statute of Limitations, which is urged, does not avail as to the breach of the covenant of warranty, as that runs with the land. If the declaration as to that covenant was defective, it was an amendable defect and was cured by the reference.
But another question arises on these facts: Davenport conveyed to Potter as aforesaid in 1871. Potter mortgaged back to Davenport to secure a part of the purchase price. Potter conveyed to Booth in 1873 by deed of warranty but excepting in his covenants the mortgage to Davenport to the amount of $200 and interest which Booth therein assumed. Booth did not pay this debt but conveyed to the plaintiff Wilder by quit-claim in 1876, making no mention therein of the Potter-Davenport mortgage; and at this time the mortgage debt was overdue. The description in all these deeds by metes and bounds was the same as to the
Hereon two points of defence are urged. First, that Wilder had the full benefit of said land and therefore has no right of action against the defendant, having suffered no damage even if the covenant in his deed was broken. Second, that Davenport, and not Wilder, had the legal title at the time of Wilder’s alleged eviction, on the ground that the Potter-Davenport mortgage was overdue when Wilder took his deed, and Booth, who was Wilder’s grantor, held expressly subject to that mortgage.
As to the first point, we hold that the incidental benefit to Wilder by the Mason levy was not a satisfaction of the breach of covenant in the Davenport deed. .Davenport cannot invoke Mason’s oversight and loss to cure his own error in conveying land that he ha,d no title to. At law he must make good the covenants of his deed. He cannot stand on his grantee’s good fortune resulting from a blunder of the grantee’s creditor, who was doubtless misled by the error in the deed now complained of. We see no legal ground upon which the equities between the three parties can be settled in this suit at law for breach of covenant.
As to the second point, we think it is not well taken. Davenport sold and conveyed land that he did not own. The plaintiff through mesne conveyances succeeded to the same record title that, Davenport passed to Potter. Davenport might have asserted his right of possession after the condition of his mortgage from Potter was broken, but he did not until after the plaintiff took his title. The latter was under no personal responsibility to pay the mortgage,
As to the eviction, the defendant does not claim but that there was an eviction as to the land in Searsburg, but denies any eviction as to the land in Readsboro. We sustain the defendant on this point. The case was argued in behalf of the plaintiff as though the referee had found and reported a valid paramount outstanding title in a stranger when Davenport conveyed, as to the Readsboro land as well as the Searsburg land; and thereon it was argued that such title constitutes an eviction without any actual possession or assertion of right by the stranger or attempted possession by the plaintiff.
Without passing on the legal point, it is sufficient answer that it is based on a false assumption of fact. As to the
Judgment reversed with costs to the defendant in the Supreme Court. Judgment for the plaintiff for $125, and interest since the eviction, and costs in the County Court.