Woodruff v. Baldwin

*442 Tobeabge, J. The plaintiff accepted a deed poll conveying to him an interest in real estate, which recited an agreement on his part to pay money for or on account of the releasor, and thereby the plaintiff bound himself to perform that agreement. Pike v. Brown, 7 Cush. 138; Foster v. Atwater, 42 Conn. 244; Hubbard v. Ensign, 46 id. 576. The recited agreement relates to the payment of rent under the lease from Yale College, and the dispute between the parties is as to the extent of the agreement, and not as to the obligation of the plaintiff to perform it. The plaintiff construes the agreement as one which binds him to pay only such a proportional part of the rent as the part of the leased land conveyed to him bears to the whole of the leased land, while the defendant construes it as one which binds the plaintiff to pay the entire rent; and substantially the only question in the case is which of these constructions is the correct one. The decision of the case thus turns upon the construction of the recited agreement. The claim of the plaintiff, that the language of the recited agreement is that of the releasor, and that in case of doubt as to its meaning it should be construed most strongly against him, will, for the purpose of the argument, be conceded. Reading that agreement in connection with the entire instrument in which it appears, and in the light of the circumstances under which it was made, as these appear upon the record, we are of the opinion that it binds the plaintiff to pay the entire rent. In the deed in question the premises to be conveyed by it are first described by metes and bounds, and this is followed immediately by a declaration to the effect that they are a part of the premises leased by the college to Mrs. Pearson and by her assigned to the releasor. The assignment is by express reference made a part of the deed, and the assignment embodies by express reference the original lease, so that both the original lease and the assignment are by reference made part of the deed to the same effect as if recited therein in full. The lease showed that the rent under it “ that may annually become due to Yale College,”- at *443 the date of said deed, was $70 payable as one sum at one stated time. Immediately following this, in a separate sentence, comes the agreement here in question. In that, as a part of the consideration of the deed, the plaintiff “ agrees to pay the rent of said premises that may annually become due to Yale College.” The deed first recites that the land conveyed by it is part of the leased “ premises,” and the agreement is to pay the rent of “ said premises ” that may annually become due to the college. The “ premises ” mentioned in the agreement are, we think, not the premises conveyed by the deed, but the entire leased premises, for upon these alone did any rent “ annually become due to Yale College.” If the parties to this agreement desired, as the plaintiff claims, to apportion the rent, the language employed is not at all apt and appropriate to express such an intention, while it is apt and appropriate to express an intention to pay the entire rent. Had their intention been to apportion the rent they could easily have expressed that intention, and would doubtless have indicated in some way the proportion which the plaintiff was to pay. As the deed is drawn there is nothing in it to indicate with certainty what the proportion should be. The complaint alleges, in effect, that the plaintiff owns twenty-seven fortieths, and the defendant thirteen fortieths, of the leased land, but the deed which is made a part of the complaint shows that this is not so. Apparently, from the deed itself, the only way that an apportionment could be made would be to take the area of the land occupied by each of the parties, and apportion the rent according to that. But even if the area occupied by each were ascertained, there is nothing in the deed to indicate the relative values of each area, and unless such relative value is known, an equitable apportionment cannot well be made. In short the deed furnishes no data from which an equitable apportionment can with certainty be made. Under such circumstances it would be a clear misconstruction of the language used by the parties to hold that by it they intended to make an apportionment of the rent. *444 The Court of Common Pleas is advised to sustain the demurrer. Costs in this court will he taxed in favor of the prevailing party. In this opinion the other judges concurred.