Huff v. Nickerson

The opinion of the Court was drawn up by Whitman C. J. The plaintiff conveyed to the defendant, by deed of release and quitclaim, bearing date Sept. 17, 1832, all his right, title and interest in and to a parcel of land, situated in Belfast; being the same formerly possessed by Major William Cunningham, formerly of Belfast, deceased, and being all the lands then claimed by the defendant, under said deceased. The deed of the plaintiff, however, contains a proviso, that the defendant shall ,pay the plaintiff or his assigns twenty-two dollars annually, from the date of the deed, on demand, by the plaintiff or his assigns, at said Nickerson’s dwelling-house in said Belfast. This proviso is then followed by this clause, “ said Nickerson is to pay said twenty-two dollars annually, as aforesaid, during the natural life of Elizabeth Cunningham, relict of the said William Cunningham.” This annuity was regularly paid until 1840, and inclusive of that year. In 1844, the annuity from 1840-then being in arrear, the plaintiff made the proper demand, as seems to be admitted, of the annuity for the three years then remaining- unpaid. The defendant did not then comply with the demand; and the plaintiff afterward brought this action to recover the amount claimed. The defendant now contends, that he is not liable, if at all, [113] in an action of assumpsit; and this is the question we are called upon to decide. In settling it we have very little occasion for going into an argument to establish the plaintiff’s right to recover; and we cannot regret that such is the case, when the equity of the case is manifestly with him. We find authorities directly in point, which clearly show that the defendant must be held to be liable in assumpsit. The first in Goodwin & al. v. Gilbert & al. 9 Mass. R. 510. The language of the Court in that case was, “ we are all satisfied that, as a general rule, where land is conveyed by deed, and the grantee enters under the deed, 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.” And the Court remark, in the same case, that where the law raises the promise it is not within the statute of frauds. The defendant here has enjoyed the benefit of the conveyance, which was an extinguishment of a right of dower of the widow of William Cunningham, in an estate conveyed to the defendant by him in his lifetime; and which she had assigned to her son, the plaintiff. This right the defendant had enjoyed ever since he took his deed from the plaintiff; and by virtue thereof, she being still alive. The case of Rogers v. the Eagle Fire Co. of N. Y. 9 Wend. 611, is also an authority in point. Mr. Justice Nelson, in delivering the opinion of the Court in that case, after citing with approbation the case of Goodwin v. Gilbert, and 1 Bacon, 178, note, and cases there cited, says, it cannot be controverted, that assumpsit lies for rent reserved on a deed poll, “ upon the principle, that whoever takes an estate under a deed, ought, in reason and equity, to be obliged to take it under the terms expressed in the deed.” The case of Croade v. Ingraham, cited for the defendant, is distinguishable from the case at bar. There the stipulated annuity was sought to be recovered of the assignee of the estate; and the Court very properly held that it was not recoverable ; that it was not a liability that accompanied the title to the land. The Court there held the contract good as between [114] the original parties. Here the claim is against the original contractor, and in favor of the original bargainee. Defendant defaulted.