Newcomb v. Presbrey

Wilde, J. Each party in this case claims title under Simeon Presbrey; and the question at the trial was, which of the parties had the elder and better title. The demandant gave in evidence a quitclaim deed of the demanded premises to him, from the said .Presbrey, dated September 20th 1830, duly acknowledged, and recorded October 5th 1838.- The tenant then offered in evidence a deed to her of the premises, dated December 16th 1826. On inspection, it appeared that the signatures of the said Presbrey and his wife had been erased; and it was proved, by the testimony of Ann J. Briggs, that this erasure had been made before the deed was recorded. She testified, among other things, that the deed was found muti Iated eight or nine years before the trial, that is, in 1835 or 1836. It was contended that the testimony of this witness (which is fully stated in the report of the judge who tried the case) furnished sufficient evidence that the deed was cancelled with the consent of the tenant. But it was decided that the deed was not admissible. And we are all of opinion that this decision is well founded; especially as the deed to the tenant was not recorded until Iotig after the recording of the deed to the demandant. It is clear, therefore, that the tenant’s title [409] could not prevail against the demandant, whether his deed were cancelled or not, unless it could be proved that the demandant, when he purchased, had notice of a previous valid and subsisting conveyance to the tenant. No such evidence was offered at the trial. All that was offered to be proved was, that the demandant had knowledge of the fact that the tenant had held a deed from said Simeon Presbrey, before his deed to the demandant, and that such deed had been given up. The demandant, therefore, might well presume that the deed to the tenant had been cancelled, especially as for many years it had remained unregistered. Farnsworth v. Childs, 4 Mass. 640. Trull v. Bigelow, 16 Mass. 406. To obviate the objections to the admission of the deed to the tenant, her counsel offered to show, by the testimony of the said Simeon Presbrey, the facts in relation to the mutilation of the deed. But this witness was objected to as incompetent, in consequence of the covenants contained in his said deed ; and on this ground he was excluded. It is- argued, that the witness was interested to make it appear that the deed- was cancelled, or the signatures erased, with the knowledge and consent of the tenant; for if so, he would not be liable on his warranty to the demandant; and, by setting up this deed, he might be liable. But there is a fallacy in this argument; because, if the witness should testify that the deed was mutilated with the consent of the tenant, he might still be liable on his covenant of warranty ; for in an action on that covenant, the demandant might, perhaps, prove the contrary by the witness’s own declarations, which would be competent evidence in that action, although not so in this. There is, however, another objection to the ruling at the trial, which we think well founded. It is not stated, in the report of the case, that the deed to the demandant contained any covenant of warranty; and it has been argued by counsel, on the assumption that it was a mere quitclaim deed ; but on looking into that deed, we find that it contains an express covenant of warranty, or for quiet enjoyment, against all persons claiming from or under the said Simeon Presbrey. The words of the [410] nabendum are, “ to have and to hold the aforementioned premises to the said Nathaniel Newcomb, his heirs and assigns forever ; so that neither I, the said Simeon Presbrey, nor my heirs, nor any other person or persons claiming from or under me, shall or will, by any way or means, have, claim ’or demand any right or title to the aforesaid premises.” That this clause in the deed amounts to a covenant of warranty, or of quiet enjoyment, against all persons claiming title under or from Simeon Presbrey, cannot admit of a doubt. To constitute a covenant, it is not necessary that the word covenant, or any other particular word or words should be made use of; for any words in a deed, in what part soever found, from which the intent of the parties to entir into an engagement can be collected, are sufficient for that purpose. Bac. Ab. Covenant, A. 3 Wooddeson, 86, 87. 2 Stephens Nisi Prius, 1057. Thus these words, in the lease of mills, “ and the lessee shall repair the mills as often as need shall require, and shall leave them sufficiently repaired at the end of the term,” import an express covenant 1 Rol. Ab. 518. So in Cramer v. Bradshaw, 10 Johns. 484, where one, by a bill of sale, granted “ a slave, being of sound wind and limb, and free from all disease,” it was held that these were not words of description, but a covenant of warranty. This being the clear construction and import of the deed to the demandant, it follows that the witness was equally interested on both sides of the cause. His interest in favor of the tenant was counterbalanced by his interest in favor of the demandant, he being liable on his covenant of warranty, whichever party should prevail. A new trial, therefore, must be granted. It will not, however, avail the tenant, unless it can be proved, not only that the erasures of the signatures to the deed were made without the knowledge and consent of the tenant, but that this fact was known to the demandant at the time of his purchase. The demandant’s title must prevail, unless it can be effectually impeached, on the ground of fraud; and certainly, from the evidence reported, no fraud can be imputed to the demandant. JSew trial granted