Harlow v. Thomas

Morton J. delivered the opinion of the Court. The defendant’s deed to the plaintiff contains the usual covenants of warranty. The one alleged to be broken is in these words, “ that the premises are free of all incumbrances.” The easements which Perkins and Sampson hold, to pass over the land conveyed, and to take water from a spring situated in it, is clearly a breach of this covenant. Kellogg v. Ingersoll, 2 Mass. R. 97 ; Prescott v. Trueman, 4 Mass. R. 627. The reference to the deed from Bent to the defendant was for the purpose of description, to identify the land conveyed and to distinguish it from other adjoining land of the defendant, and not to limit or qualify the title or the" estate granted. It is true, that the intention of the parties to all contracts must govern the construction of them ; and that their intention must be collected from the whole instrument and not from detached sentences and parts of it. But it is equally true that the intention must be ascertained from the instrument itself, and cannot be proved aliunde. In this mode of construction, general stipulations or covenants may be limited and restrained by special ones, and by the general scope and [69] object of the contract. Gale v. Reed, 8 East, 80 ; Bender v. Fromberger, 4 Dallas, 436 ; Cole v. Hawes, 2 Johns. Cas. 203 ; Knickerbacker v. Killmore, 9 Johns. R. 106. Now with these rules of construction in mind, we think no one, by reading the deed of the defendant with the one referred to, and without any other information, would ever suppose that any exception was intended to be made in the general words used. He might learn that theretofore an incumbrance had existed, but he could not know that it had not been removed ; much less could he understand that when the defendant covenanted" against all incumbrances, he meant all except two or three rights of way and other servitudes. If we could receive the paroi evidence which was offered, it would be made probable, that the plaintiff not only knew of the existence of these incumbrances, but expected them to remain, and bought the land subject to them. But if any principle of law be well settled, it is, that deeds, especially conveyances of real estate, cannot be varied, controlled, or contradicted, by paroi evidence. Uncertain would be the titles of real estate, and useless the registration of deeds, if their contents and effects were to be determined by the testimony of witnesses. They would mislead, rather than guide us in a safe course. The plaintiff having established his right to recover, it only remains to inquire what shall be the measure of damages. The' general rule in cases of this kind, is plain and undisputed. If the covenantee has fairly extinguished the incumbrances, he ought to recover the expenses necessarily incurred in doing it. If they remain and consist of mortgages, attachments, and such liens on the estate conveyed as do not interfere with the enjoyment of it by the covenantee, he can recover only nominal damages. But if they are of a permanent nature, like the perpetual servitudes in this case, such as the covenantee cannot remove, he should recover a just compensation for the real injury resulting from their continuance. Prescott v Trueman, 4 Mass. R. 630. But the defendant contends, that the present case should be excepted from the general rule, because the plaintiff knew of the incumbrances when he received his deed, and agreed [70] to take the estate subject to them, and not to have the cove nants apply to them. It is not necessary to inquire whether the evidence offered would support the defendants’ statement; because if it would, in our opinion, it would not be competent evidence. It would violate the rule just laid down against the admission of paroi evidence, to contradict deeds ; and some part of it would be immaterial, because the plaintiff might know of the existence of the incumbrance, and yet expect to have it removed, and take a covenant against it. The case of Townsend, v. Weld, 8 Mass. R. 146, is precisely parallel and of unquestionable authority. The case of Leland v. Stone, 10 Mass. R. 459, relied upon by the defendant’s counsel, does not conflict with it. That was for a breach of the covenant of seisin, in which the measure of damages is the consideration paid. And inasmuch as no consideration was paid for that part of the estate of which the grantor was disseised and which did not pass by his deed, it was clearly competent to show that fact in mitigation of damages. If two tracts of land are conveyed in one deed, but a separate price is agreed upon for each, then on a breach of the covenant of seisin as to one tract, the rule of damages will be the sum which was paid for that tract. We are therefore of opinion, that no circumstances have been shown which will take this case out of the general rule for estimating damages for breaches of the covenant against incumbrances. Defendant defaulted.