Harriman v. Park

Deed-poll — Reservation — Acceptance. 1. The defendants object that the form of action is misconceived. The well considered case of Burbank v. Pillsbury, 48 N.H. 475, is an authority directly in point, that assumpsit will lie in a case like this. "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 force of his acceptance is a valid contract on his part by which a right, may be reserved or granted, or upon which a suit may be maintained." Newell v. Hill, 2 Met. 181. "As a general rule, where land is conveyed by deed-poll, certain duties being reserved to be performed, as no action lies against the grantee on the deed, the grantor may maintain assumpsit for the non-performance of the duties reserved." Goodwin v. Gilbert, 9 Mass. 514. To the same point is Nugent v. Riley, 1 Met. 117.* *Page 473 And the promise being raised by the law is not within the statute of frauds. Goodwin v. Gilbert, supra. 2. The defendants also object that the action should be brought by the heirs of James Harriman. The estate of the testator not being insolvent, his title in the adjacent land on the south and west vested in his heirs or devisees upon his decease, and not in the executrix. They were therefore entitled to the rents and profits from the time or his decease, and had the possession, or the right to the possession, from and after that date. Whatever damages accrued from the defendants' neglect to make and keep in repair the fences, after the decease of James Harriman, did not therefore accrue to his executrix; and she, as his legal representative, can only recover for such damages as accrued prior to his decease. Plummer v. Plummer, 30 N.H. 558. 3. The defendants further object that they were not bound to maintain the fences after they conveyed their interest in the land: that they were so bound, at least during the life of their grantor, is clear. They stipulated so to do by their act of accepting the deed from the plaintiff's testator containing an agreement to that effect, and they cannot be permitted to divest themselves of the burden which they assumed, nor to defeat the right which they stipulated in the deed their grantor should have to require the fences to be kept in repair at their expense — a burden for which they have been paid in the diminished price paid by them for the land — by conveying their title to a third party. Whether the testator's heirs or devisees can maintain an action against these defendants or their assigns, for damages accruing subsequent to the decease of James Harriman, are questions that do not arise in the case now before us, and therefore need not be considered. The stipulation in the deed does not in terms extend to the heirs or assigns of either party, and can only be held to include them by holding the agreement to be a covenant running with the land. As the result of so holding would be to impose a servitude upon the land conveyed in favor of the adjoining lands on the west and south, I should be slow to give the deed such construction, unless the parties so intended; which intention is to be gathered from the language they employed to express their meaning, and from the light of surrounding circumstances. * And see Emerson v. Mooney, 50 N.H. 320. REPORTER.