Peck v. Hensley

Wheeler, J. It is insisted for the appellees, that as the deed from Hensley and wife to the plaintiff, purports to convey only such right as the grantors had in the land, the covenants are qualified and limited by the grant; and consequently that the covenant of good right to convey must be taken to mean a power to convey only such right as the grantors had. In support of this position we are referred to the case of Allen v. Holton, (20 Pick. R. 458,) which does seem to favor the position contended for. The grant in that case was of “all my right, title and interest in and unto the ferry called, &c., and the boat which I built, and now use in carrying on the ferry, and all the estate, land and buildings thereon,” with covenants of ownership and general warranty; and it was held that the deed purported to convey only such right as the grantor had, and that the covenants had reference to the grant, and were limited by it; that it was not a deed of warranty, but a quit claim deed. The case of Moore v. Magrath is referred to by the Court, as a strong case to show to what extent a Court may go, in qualifying and even rejecting a particular clause in a deed, in order to effectuate the intention of the parties. There the lands, intended to be granted, [677] were particularly named in the preamble, and were afterwards minutely described in the premises; and then followed a sweeping clause, purporting to convey “ all other the donor’s lands, tenements and hereditaments in Ireland.” The Court held that nothing passed by this sweeping clause; being of opinion, from the words of the preamble, that the donor did not intend to include his paternal estate, (which was situated in a different county,) and that it was more than probable that the conveyancer by mistake omitted some words in that clause. There is no doubt that a recital, or a preamble, in a deed may qualify the generality of the words of a covenant or other parts of a deed, where they manifest an intention different from the import of the general words. . Every deed is to be construed according to the intention of the parties as manifested by the entire instrument, although it may not comport with the language of a particular part of it; with the qualification, perhaps, that where a particular construction has been given to a certain covenant, in doubtful cases, the intention of the parties will, to a certain extent, be referable to that construction. (Id. 463; Rawle on Cov. 81.) Looking to the intention of the parties, as manifested by the words of the deed, I am inclined to the opinion that it was the intention of the grantors to do more than give a mere quit claim deed, in this instance; and to covenant, as the words import, that they had good right to convey the land described in the deed. They refer to the grant from the Government to their grantor, and his conveyance to themselves, showing a perfect chain of title from the Government; and then follows the covenant in question, as a conclusion from the facts to which they have referred. The especial reference to the evidences of their right would seem to manifest the intention to covenant that they had the right to convey the land. Upon the opposite supposition the clause is nugatory. But it is not essential to determine this question positively; for if the true construction of the deed is such as we have supposed, and as it must be held, to enable the plaintiff to maintain his action, still we are of opinion that upon the evidence he was not entitled to recover, and that judgment was therefore rightly rendered for the defendant. According to the modern doctrine, it was not necessary that there should have been an actual eviction, to entitle the plaintiff to sue for a breach of covenant. He might yield the possession to a title which he was satisfied must ultimately prevail, without [678] losing his remedy or his covenants. But if- he assumed the responsibility of determining upon the chances of its success, and chose to yield to the adverse title, he did so at his peril; and in his suit against his covenanter he must assume the burden of proof, and rely upon and make out the adverse title to which he has yielded. (Rawle on Covenants, 263.) The proof on which he relies to establish a superior adverse title is the judgment of the District Court of Colorado county. That appears to be a decree for the specific performance of a contract to make title, made by the original grantee in 1833. It simply decrees the title of the grantee to be in the plaintiff in that suit. It may have been, and probably was, an amicable suit between the plaintiff therein and the heirs of the original grantee. Such seems the probable inference from the recitals in the decree. It does not establish any right of possession adverse to the present .plaintiff. The defendant was not a party to that suit, nor does he appear to have had notice of it. The decree amounts to no more than a conveyance by the heirs, of the title of the grantee, to the plaintiff in that suit; and it does not relieve the plaintiff in this suit from the burden of proving that it was properly rendered, and that it constitutes a title superior to that of his vendor. (Ib.) If properly rendered, as between the parties to it, it does not appear that the contract upon which it was rendered was ever recorded, or that the defendant had notice of it, actual or constructive, at the time of his purchase. His deed was recorded; so was that of his vendee, the plaintiff; and in the absence of notice of the adverse title, or contract to make title, the plaintiff’s title is superior to that, and in an action of trespass to try title must prevail against it. The judgment was properly admitted in evidence, to lay the foundation for other evidence to establish a paramount adverse title; but, in the absence of other evidence, it did not amount to proof of such title. When, therefore, the plaintiff failed to produce other evidence, it was properly excluded, as affording no sufficient evidence in itself to entitle the plaintiff to recover. There is therefore no error in the judgment, and it is affirmed. Judgment affirmed.